Talking about judges, talking about women: constitutive rhetoric in the Johnson Controls case.
For this is the great truth, which was known to all educated men in
our day: that by what men think, we create the world around us,
daily new.
Marion Bradley(1)
Discrimination cases present fruitful opportunities for examining judicial rhetoric. The actors
When we consider how people talk to and about each other, we are looking at more than mere breath on the wind, especially in the context of legal institutions where talking frequently results in action. Those who "talk law" -- judges, legislators, lawyers, administrative officials -- are in a real way shaping the world with their words. The texture of the world they create is at least as significant as the individual redistribution of assets or liberties that also results.
In examining the language of judges and other writers, I focus on their "constitutive rhetoric," a term that will require exploration. James Boyd White is the most frequent user (and probably the inventor) of this term, in his writings about both legal and literary texts.(2) He explores the ways in which writers create "constitutions" between themselves, their readers and others, paying special attention to the ethical and political consequences of the relationships created through language, criticizing and evaluating judges and other writers on the universes their words shape.(3) The methods he uses, which have been adopted explicitly by some writers(4) and are similar to the approach of others,(5) provide a fresh way of discussing many kinds of texts, judicial opinions in particular. My approach draws heavily on these methods.
In this article I examine the judicial rhetoric in United Auto Workers v. Johnson Controls, Inc.(6) a case that made headlines(7) and caused a respectable amount of scholarly commentary.(8) As a discrimination case presenting difficult political issues, Johnson Controls provides both opportunities and pitfalls for the language of judges. In this article I explore the rhetoric of the three opinions in the case, setting them within the context of the "law and Literature" movement in general and "rhetorical analysis" in particular, as well as the legal, factual and procedural background of the case. The language in all three opinions is largely disappointing, although there are things to admire as well.
CONSTITUTIVE RHETORIC
Among the interdisciplinary forms of legal scholarship that have emerged over the past few decades, the "law and Literature" movement is perhaps the most diverse. Although the field is generally said to have begun with the 1973 publication of James Boyd White's The Legal Imagination,(9) the association of law with Literature is a tradition going back to the American Revolution.(10) All that can be said accurately of the movement as a whole is that its proponents are generally engaged in the project of looking at law and Literature together, or looking at them in similar ways. In other words, these scholars think of law as one of the humanities, rather than as a branch of the social sciences.(11)
It is difficult to describe the law and Literature movement precisely, because the agendas and methods of its members are so diverse.(12) Nonetheless, at least three or four distinct projects can be described. First, some writers use works of Literature to draw lessons about perception, ethics and humanity that are useful for the law and legal reasoning; they point out that Literature frequently tells truths about the Human condition that contradict, or at least amend, assumptions about Human nature that the law habitually makes.(13) By making these observations explicit in a legal context, they hope to improve the law. Second, some writers use the tools of modern literary criticism, which have uncovered so many difficulties and possibilities for interpreting texts, as means for interpreting legal texts. They point out that the same problems of extracting "meaning" arise in both the literary and legal contexts.(14) Third, some writers explore the representations of the law in literary works, pointing out the effect that legal institutions have on culture as a whole.(15) A fourth group examines legal rhetoric.(16)
Those who discuss constitutive rhetoric(17) proceed from the basic premise that the way someone talks about a topic is as important as, and perhaps inseparable from, the content of what she says.(18) Every author creates a relationship or community between herself, her reader and the people and ideas she writes about. In this community she has a certain role, defined by the voice she uses and the methods she employs. This role is the ethos of Greek rhetoric, a persona worthy of being believed and a claim of veracity: "You should listen to me and believe me."(19) This claim might be based on intelligence, empathy, mutual interests, experience, age, expertise, talent, or an infinite number of other things. By making this claim, the author impliedly makes another: That this is a good way to persuade, that people ought to talk in this way. If I attempt to persuade you partially because of our shared experience, my unspoken assertion is that shared experience is a valid reason to believe someone.
Similarly, a writer casts her readers and others in particular roles, defining the way that these roles interact. Are the "characters" in this narrative living, breathing people? Caricatures? Paper tigers? Is the reader supposed to think for himself or follow slavishly? Is he expected to be well-read or ignorant, smart or stupid, one of the converted or a newcomer? Once again, there is an implied statement that the reader should play such a role, that others should be talked about in this way, that communities ought to behave in the way the author has them behave. Her words thus create an idealized community, one in which power and authority are distributed according to some vision of persuasion. In this the author can and should be judged for the ethical and political content of her vision: Is this a good kind of interaction? Does it represent the kind of community in which you would like to live, or the sort of relationships you would like to have? Is the political world one which you find admirable?
As a simple example, imagine the teacher who begins her first lecture with the words: "Look to the right. Look to the left. One of you three won't pass this course." What claim of authority is here? Who does this speaker claim to be, and what does she claim to know? Who does she think her students are, and how does she expect them to interact? What is she saying about the way the world works, or should work? If the world really did work this way, would you be a happy, willing part of it?
Now imagine another opening: "I'm not sure what this course is about, because it hasn't happened yet; I expect that you'll let me know what it's about before it's over." Contrast this to the earlier opening, and ask yourself the same questions. The differences are striking. It is not merely the "substance" of these statements which differs. They each envision a world that works in an entirely different way from the other. They are different in their conceptions of right and wrong, productivity and wastefulness.(20)
The examination of rhetoric is not simply an exercise in abstraction or theory. Once one has accepted a certain way of being spoken to, or a certain way of speaking about others, other types of speech become impossible. For example, the judge who dehumanizes or objectifies a party is capable of doing things to that party that would not otherwise be done. It is possible to disregard the interests, feelings, needs, and rights of such a person, depending on how language defines that person. Those who listen to the judge and adopt her language may find themselves similarly mistreating this person. It has been said that the law is different from Literature because the law has coereive, violent power behind it;(21) yet one who deliberates before using violence, as all legal authorities do, to some extent, is incapable of using it without first finding a way of speaking which makes the violence acceptable. Violence exists whether we have law or not; law creates language to talk about violence, in which some forms of violence are virtuous and others are condemned.(22) Ponder the differences between the words "execution", "murder", "termination", "elimination", "mercy killing", "self defense", "warfare" and "duel." In each case we may be talking about the same physical action, but that does not begin to account for our reactions. The language itself is pivotal.
There is no single way to assess the rhetoric in a piece of writing or speech. Literally everything the author says will express or describe the role she sees for herself and the community she wishes to establish. Further, different texts will require different strategies for appreciating and criticizing the nature of their rhetoric. The aspect or portion that is significant in one text may be wholly neutral or uninteresting in another. Yet exploring certain parts of a judicial opinion seems to yield consistently gratifying insights. The words at the beginning of the opinion, for example, often give insight into the judge's attitude towards the whole enterprise of making the decision. Anyone who reads any part of an opinion will almost invariably read the first few words, giving the judge her best opportunity to say the most crucial things about the case. What does the judge think are the most significant things about the case -- the language of a statute, the history of its interpretation, the pre-trial facts, the procedural background, some important social issue, or something else? While there are some "stock" ways to begin an opinion, in no case is the judge required to use any of them. The choices she makes demonstrate the ways in which she imagines her words reach her reader. They show what she thinks persuasion should be. Some judges always start their opinions with the same words; yet while such a standardized opening may not illuminate the particular rhetoric or community of a particular case, it says much about the universe of judging this particular judge inhabits.
The methods I have described so far may resemble a close reading of a work of Literature, but other aspects resemble traditional legal scholarship. Rhetorical analysis gains much, for example, from examining a judge's use and interpretation of precedent. The focus is not on the pure logic of the judge's work, but rather on the attitudes and world-views suggested by the particular use of precedent. What does the judge imagine the role of prior courts to be in her universe? What does she show her own role to be? Does she show herself to be an intelligent mind responding to other intelligent minds, a clerk looking up results, or a con-artist trying to find material with which to woo her victim? Is this an honest way of looking at prior decisions, or is it cynical and manipulative? Can, and should, a community be maintained in which the voices of the past are used in this way? The ways of using precedent that have already been established in our legal tradition provide a context for making these determinations.(23)
Thus, the exploration of judicial rhetoric draws attention to the political and ethical worlds judges create when they speak. These worlds are important because consequences flow from them, consequences just as serious as those in the "material" world normally thought of as the realm of all important events. On the other hand, the exploration of judicial rhetoric normally does not prescribe outcomes. A rhetorical analysis, focussing on the relationships within an opinion, usually will not end with that most traditional of legal scholarly devices, a recommendation to the courts.(24) This not to say that the study of constitutive rhetoric could never suggest the outcome of a case. For example, it would be difficult to imagine any admirable voice saying that some people should be the slaves of others, or that some are not entitled to the rights of citizenship because of the color of their skin.(25) But such a direct connection is the exception rather than the rule. More often than not, it will be possible to use both "good rhetoric" and "bad rhetoric" to make largely identical arguments, and to reach precisely identical "results." Results are not unimportant, but the rhetoric with which those results intertwine, and into which they merge, have an importance all their own.(26)
Johnson Controls is interesting, from the point of view of rhetorical analysis, because of its politically difficult nature. It is politically difficult for three reasons. First, it involves a business policy affecting women differently than men, making it controversial in any of the last thirty years. Second, it involves fetuses, or potential fetuses, during a period when abortion is a volatile political issue. Third, it involves potentially high costs to industry at a time when "competitiveness" is a conservative watchword. Hence, while it may not be a "classic" case in the sense of making a major legal change, it is significant because of the political issues it raises.
These political difficulties present new reasons, over and above those that would appear in every discrimination case, for examining the justices' rhetoric. One of the rhetorical problems facing a judge, especially in a politically sensitive case, is how to speak to the wider, lay audience that will be affected by the decision. Judicial decisions are not self-executing, and the manner in which the court makes its ruling may well affect the way in which the ruling is received and honored. Further, the obvious presence of political issues explicitly raises the question of how the judge should talk as a political actor.(27)
BACKGROUND OF THE JOHNSON CONTROLS Case
In the decade prior to Johnson Controls, the lower federal courts and administrative agencies grappled with the problem of fetal protection policies.(28) These policies were an industrial response to the risk that certain substances or conditions in the workplace could be harmful to the reproductive systems of employees, resulting in possible damage to their later offspring. The fetal protection policy was designed to prevent this harm by banning women who were capable of bearing children from jobs in which they might be exposed to hazardous substances or conditions. Men generally were not banned from those jobs, ostensibly because the risk of harm to their offspring was much more speculative.(29)
The legal problem with fetal protection policies was their status under Title VII of the Civil Rights Act of 1964, which forbids discrimination in the workplace on the basis of sex.(30) Since fetal protection policies prevented women from taking certain jobs which were available to men, the possibility arose that they offended the prohibition of Title VII. To complicate the problem, the Pregnancy Discrimination Act of 1978 (PDA) specifically amended Title VII to define "discrimination on the basis of sex" to include discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions".(31) Since fetal protection policies excluded women because they were capable of bearing children, the PDA suggested another reason that they might violate Title VII.
There are two major theories under which an employer's policy might be illegal sex discrimination. If a company explicitly treated men differently than women -- permitting only men to be managers, for example -- the action would be described as "disparate treatment," and would be "discriminatory on its face." The employer would be able to escape liability by proving that the policy was based on a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise" (BFOQ).(32) Thus, a policy of hiring only men as attendants in a men's washroom would not violate Title VII, since maleness would be a genuine qualification for the job.
On the other hand, a policy which did not explicitly treat the sexes differently but which had the effect of treating them differently -- such as a height requirement which ended up keeping women out of jobs -- would be said to have a "disparate impact", and would also violate Title VII.(33) In that case, the employer could defend itself by proving that there was a "business necessity" requiring that the policy be adopted.(34)
In 1982, the United States Court of Appeals for the Fourth Circuit determined that a fetal protection policy was an example of "disparate impact" in Wright v. Olin Corp.(35) The employer had a "fetal vulnerability" program, under which no female employee, age five through sixty-three, was permitted to work in certain "restricted jobs" involving lead exposure, unless she was shown to be incapable of bearing children and would "sustain no other adverse physiological effects from the environment."(36) No similar restrictions were placed on male employees, although they were orally warned about lead exposure.(37) The Fourth Circuit opined that the situation "does not fit with absolute precision into any of the developed theories,"(38) and suggested that an appropriate analytical framework should be based on the policies underlying the different theories. The court determined that the policy underlying the concept of "facial neutrality / discriminatory effect" (disparate impact) was the most appropriate for the fetal protection policy, because "facial neutrality" was primarily concerned with the effects of an employer's policies rather than the wording of the policies themselves. Since "business necessity" would then be the appropriate defense, and the district court had not considered it, the case was remanded for further proceedings.(39)
In 1984 the United States Court of Appeals for the Eleventh Circuit determined that a fetal protection policy was "facially discriminatory" (disparate treatment), but made a curious counter-argument available to defendants. Hayes v. Shelby Memorial Hospital(40) involved a pregnant x-ray technician who was fired because her job involved exposure to ionizing radiation. The court held that the defense argument available in what it called a "pretext" case (that the defendant's real reason for firing the plaintiff was a nondiscriminatory one) was inapplicable because the terms of the PDA made firing the plaintiff facially discriminatory. At the same time, however, the judges said that the presumption that a fetal-protection policy is facially discriminatory can be rebutted, even if the policy applies only to women, by proof that the policy equally protects the offspring of all employees -- that is, when there really is danger to the offspring of women but not to offspring of men.(41) The court determined that the employer failed to demonstrate that Hayes's fetus would be exposed to unreasonable levels of radiation, thereby failing to rebut the presumption of facial discrimination.(42) For the sake of completeness the panel discussed the business necessity defense, concluding that it would have been rebutted in this case because the employer failed to adopt the most effective policy with the least discriminatory impact.(43)
Johnson Controls grew out of a fetal protection policy which the company's battery manufacturing division first used in 1982.(44) The policy followed an earlier voluntary policy, under which some female employees had developed what the company considered to be unacceptably high levels of lead in their bloodstreams. The company's new policy mandated that women -- "except those whose inability to bear children is medically documented" -- would neither be hired for nor allowed to transfer into those jobs involving work environments in which any employee had previously recorded a blood lead level exceeding 30 [gamma]g/dl during the previous year.(45)
The United Auto Workers filed a class action suit against the company on behalf of all those workers affected by the policy, alleging violations of Title VII. The district court's decision on the company's summary judgment motion reviewed the medical and environmental submissions of the parties as well as the holdings in Wright and Hayes.(46) The court adopted the logic of both cases, holding both that the company's policy raised a presumption of facial discrimination because by its terms it applied only to women, and that the presumption was successfully rebutted by the proferred evidence that there were risks to the offspring of women but not to the offspring of men.(47) The court said that the employer's only burden was to show the existence of a considerable body of opinion within the scientific community supporting its decision. Consequently, even though there were conflicting scientific submissions, the court granted summary judgment for the company.(48) Having declared the policy facially neutral under the Hayes test, the judge then analyzed the dispute as a disparate impact case. The court adopted the expanded business necessity defense, holding that a genuine desire to promote the health of employee offspring could constitute a business necessity. Hence, there was no Title VII violation.(49)
The appeal to the United States Court of Appeals for the Seventh Circuit, sitting en banc, resulted in a 7-4 vote for affirmance and a total of four opinions.(50) The majority opinion, written by Judge Coffey, followed the lead of Wright and Hayes by requiring the employer to establish only the business necessity defense rather than the BFOQ defense.(51) In addition, the court applied the newly-minted Supreme Court decision of Wards Cove Packing Co. v. Antonio,(52) giving the employees the burden of proving the absence of a business necessity. The majority held that there was no genuine issue of material fact concerning the presence of a business necessity.(53) The court went on to say that Johnson Controls's policy would be upheld even under the BFOQ defense, because a BFOQ is established if the company's policy is directly related and reasonably necessary to industrial safety.(54)
There were three dissents. The first, written by Judge Cudahy, was very short, primarily referring to the other two dissents. He agreed with all of Judge Easterbrook's dissent except for its disposition of the case, and agreed with Judge Posner's dissent as to the need to have a trial.(55) The second dissent, written by Judge Posner, primarily argued that the record before the court was too skimpy to permit a summary judgment for either side, and that a full trial was required.(56) Posner, unlike the majority, believed that the proper defense theory was the BFOQ defense, not the business necessity defense. He emphasized that the PDA clearly makes this case a disparate treatment case rather than a disparate impact case.(57) His view of the BFOQ defense, however, allowed for the possibility that a fetal protection policy could come within its ambit, although "it will be the rare case where the lawfulness of such a policy can be decided on the defendant's motion for summary judgment."(58)
Judge Easterbrook, writing the third dissent (joined by Judge Flaum), said that the BFOQ was the proper defense to be applied in this instance, and that the company would be unable to prove a BFOQ in this case. Since sex and the ability to bear children were the criteria used by the employer to make its decision, the policy was facial discrimination under Title VII and the PDA regardless of whether it had a neutral impact or significant societal benefits.(59) Even if Johnson Controls could establish factual support for the objectives it claimed, wrote Easterbrook, those objectives would not be sufficient to establish a BFOQ. There was no indication that women would be unable to do their jobs, and the company's reason for excluding women applied to a very small percentage of those women, if any.(60)
The United States Supreme Court reversed the Seventh Circuit's decision, issuing three separate opinions. All of the justices agreed that the proper standard for a fetal protection policy was the BFOQ defense rather than the business necessity defense, and all agreed that granting summary judgment for the company was erroneous.(61) The primary disagreement on the Court focused on whether Johnson Controls would be able to prove a BFOQ. Justice Blackmun, writing for the five-judge majority, held that the company would be unable to do so,(62) while Justice White, joined by Chief Justice Rehnquist and Justice Kennedy, believed that a finding of a BFOQ was possible, and that the company should be permitted to present evidence in a trial to that end.(63) Justice Scalia, in a separate concurrence, agreed with most of Blackmun's analysis, while agreeing with White that the prospect of excessive costs could constitute a BFOQ.(64)
CONSTITUTIVE RHETORIC IN JOHNSON CONTROLS
The primary purpose of this article is to examine the rhetorical universes created by the language of each opinion.(65) In this section, I treat each writer -- Justices Blackmun, White and Scalia -- as having envisioned and filled out an idealized world in which he has a particular role, and in which the rest of us (readers, lower courts, lawyers, litigants) each have our place. These miniature societies contain assumptions about human nature, right action, and power which, if writ large on the "real world," would have profound ethical and political implications. These assumptions and implications are worthy of scrutiny.
The nature of this analysis frequently requires us to view the narrative voice as having a personality. We think of the "writer" as having certain feelings and beliefs, and taking certain actions. It is important to remember that we are talking about the writer's voice as it appears in the text; no attempt is made to psychoanalyze the actual men who wrote these opinions. Thus, when I point out that "Blackmun does this" or "White feels that," I am not ascribing real feelings to real people; rather I am assessing the characters created by the narrative voices these judges have used. As in literary criticism, the reader should question how well my observations are supported by the text.
Justice Blackmun: Hidden Advocate
Justice Blackmun begins his opinion: "In this case we are concerned with an employer's gender-based fetal-protection policy. May an employer exclude a fertile female from certain jobs because of its concern for the health of the fetus the woman might conceive?"(66) This two-sentence paragraph appears before the first of the seven numbered sections which make up the opinion, acting as a prologue, a "hook", or perhaps a summary.(67) It stands out. What is Blackmun telling us about himself in this first snapshot? To what is he drawing attention?
First of all, this is not a "broad" introduction. Blackmun defines the scope of the court's vision narrowly. He is concerned with a particular "employer's gender-based fetal protection policy." He could have defined the issue as the Seventh Circuit's decision, Title VII, the law in general, or truth and justice. He could have focused on the well-being of workers. Indeed, he could have avoided saying he was concerned with any particular thing, and simply launched into his analysis. Instead, he does choose to point out a concern, which is both carefully circumscribed and mundane. He is concerned merely with this employer's policy. Is this the sort of thing with which we expect a judge to be concerned? If one did not know that this was a judge speaking, one might imagine that this voice, this reviewer of employer policies, belonged to a supervisor, or to an administrative agency like the EEOC or OSHA. The concern is narrow and practical; the vision is focussed.
Indeed, this voice pays an almost pedantic attention to detail. The object of the first sentence, "gender-based fetal-protection policy", is a noun with four modifiers. The second sentence, describing the employer's "concern for the health of the fetus the woman might conceive," narrows the focus more with every word. Blackmun takes pains to describe only the one thing he will talk about, using as many words as possible to name it. The same voice might easily be imagined to say, "We are discussing Department 47, District 3, under Division G." There is something of the plodding bureaucrat here, who not only fails to see the forest for the trees, but thinks the forest is none of his business. Yet there is also discipline and precision. Bureaucracy, after all, has its good points.
Blackmun states the issue as a rhetorical question that does not mention the law: "May an employer exclude a fertile female employee...." This serves more than one function. First of all, by posing a question he suggests that he is in the business of answering questions, that his role is that of a neutral arbiter. But again, what kind of an arbiter does he imagine himself to be? By excluding the law from the question and making it sound more like a policy issue, he again seems to be putting himself in the role of a supervisor or agency administrator, asking the question, "May my subordinates do this?"
While assuming the role of the neutral arbiter (albeit a prosaic one), he has also telegraphed a view of the merits of the case, or at least the merits of the company. Although he does not mention Title VII, he does use the words "gender-based" in his first sentence. Of course it is unnecessary for him to point out that a fetal-protection policy is gender-based; while a non-gender-based fetal-protection policy might theoretically be possible, no court, so far, has identified one.(68) Hence his use of the term "gender-based" serves not merely to describe the policy, but to suggest, at the start, a possible violation of the law. The first thing he tells us about the policy is not that it protects fetuses, but that it is based on gender. His ensuing rhetorical question also begins with violative conduct. The question is neither whether the employer may protect fetuses nor whether it may prevent tort liability, but whether it may exclude females from certain jobs. The rest of the question is an exercise in qualification. The indirect object of the sentence is highly modified, suggesting just how far removed Johnson Controls's alleged objective is from its real needs. The company excludes women not for urgent reasons, but merely because of a concern; not concern for business, but for health; not the health of its employees or customers, but of a fetus; not the employer's own fetus, but the fetus of the employee; not a real fetus, but a speculative one that might be conceived. The implication is that the employer is taking action on an issue that is none of its business.
The first paragraph, then, serves to define both Blackmun and Johnson Controls. Blackmun is the precise reader of details, the supervisor or administrator who is concerned about individual policies and practices rather than broader issues, but who nonetheless claims neutrality. Johnson Controls, on the other hand, is the employer who excludes women based on concerns that are impossibly removed from its own affairs. We know this about the judge and the company before we know anything about the facts of the case, the procedural developments leading to the appeal and decision, the lower court rulings or the actual arguments Blackmun is preparing to make. If Blackmun is a neutral arbiter, as his phrasing of a rhetorical question seems to suggest, then why does be plant these suggestions in our minds before we know anything about the case?
Further, what kind of readers does Blackmun invite us to be? On the one band, we are asked to treat him with the respect due a neutral arbiter. On the other, we are prevented from making our own intelligent determinations by Blackmun's prejudicial characterization of the company. The reader is not a colleague. Blackmun hands us his views from a place wbere we cannot follow him, and where he does not seem to want us.(69)
Blackmun's description of the facts behind the case, in Section I, is far from neutral.(70) His first description of Johnson Controls's employment policies is an irrelevant but highly suggestive one: "Before the Civil Rights Act of 1964 became law, Johnson Controls did not employ any woman in a battery-manufacturing job. In June 1977, however, it announced its first official policy concerning its employment of women in lead-exposure work...."(71) The company's practices prior to 1964 are discussed nowhere else in his opinion, and seem not to bear on the legality of the fetal protection policy. What this reference does do, however, is let the reader know that Johnson Controls was a sex discriminator before it ever had a fetal protection policy. The suggestion in the sentence is that Johnson Controls would never have begun employing women if not for the Civil Rights Act. The secondary implication is that Johnson Controls's arguments concerning its reasons for creating a fetal protection policy ought not to be believed, because it wants to discriminate. This is an employer that won't do the right thing unless constrained by law. Blackmun then skips thirteen years of history (notably skipping when and how Johnson Controls eventually employed women) and proceeds immediately to the 1977 policy. The implication, again, is that this company's action of choice is to discriminate against women. Blackmun also displays his command of details, again, by virtue of his grasp of the company's prior policy and its performance twenty-seven years ago.
In his implied observation that the company went directly from denying women employment to worrying about whether their presence would endanger fetuses, Blackmun suggests a critique of the way Johnson Controls thinks and talks about women. To Johnson Controls, he is telling us, women are never anything but a problem to be solved. Either they are to be excluded, or they are to be worried about. Never are they simply workers like other workers. To the extent that the company ever began to treat them as thinking, reasoning, capable adults, it did not do so for long, but lapsed into its old habits. As will appear later, Blackmun's own language does not often speak directly of the workers, women or men, as actors in this drama. But where he does speak of them, it seems clear that he wants all of them to be active decision makers, not pieces in a chess game.
The 1977 policy provides Blackmun with the opportunity to impeach Johnson Controls with its own prior statement. He uses a passage from that policy that parallels his own thinking in this case. Protection of the unborn child, it says, is the responsibility of the parents. The company cannot assume responsibility for protecting the fetus without infringing on the parents' rights. Notably, the policy says that "|it would appear to be illegal discrimination to treat all who are capable of pregnancy as though they will become pregnant.'"(72) Blackmun's tone is approving when he then tells us that Johnson Controls, "[c]onsistent with that view," adopted a policy of warning women of the danger rather than barring them from certain jobs.(73) Once again, he defines both the company and himself. He is telling us that Johnson Controls used to know better -- used to know, in fact, exactly what Blackmun says is the truth. By implication the company later violated Title VII knowing exactly what it was doing. Further, he tells us that when eight employees over a four-year period (presumably a negligible percentage of the women at Johnson Controls) became pregnant while having blood lead levels of more than 30 [gamma]g/dl, the company "responded by announcing a broad exclusion of women from jobs that exposed them to lead".(74) He might as well tell us that they swatted a fly with a baseball bat. Meanwhile, Blackmun is showing that he himself does not disapprove of all methods of protecting fetuses, only those involving discrimination. The warning method was fine with him. Again we see the claim of neutrality, coupled with a slanted characterization of the respondent, involving precisely the sort of language advocates are frequently advised to use in their own briefs and arguments.(75)
When describing the class action suit filed by the union, Blackmun makes an observation neither of the two lower courts made, and which seems irrelevant to his argument. He tells us:
Among the individual plaintiffs were petitioners Mary Craig, who
had chosen to be sterilized in order to avoid losing her job, Elsie
Nason, a 50-year-old divorcee, who had suffered a loss in compensation
when she was transferred out of a job where she was exposed
to lead, and Donald Penney, who had been denied a request for a
leave of absence for the purpose of lowering his lead level because
he intended to become a father.(76) Justice Blackmun accomplishes two things, rhetorically, with this sentence. First, he humanizes the employees. One of the more troubling aspects of both lower court decisions, both Supreme Court concurrences, and even much of Blackmun's own opinion, is that the employees do not appear at all as characters. At best, they appear as the objects of action taken by the company or the courts, with no desires, hopes or troubles of their own. This is especially troubling in a discrimination case, where determining how to talk about people is part of the core of the dispute and the decision. The company's worries, by contrast, are vividly described by both Judge Posner(77) and Justice White.(78) In this passage, however, we are shown three individuals who have suffered in different ways. One woman has undergone the extreme and perhaps horrific measure of sterilization for the sake of her job. Another, despite her age and state in life, nonetheless loses pay based on the impliedly minuscule possibility that she will become pregnant. Finally, a man has health worries concerning the same dangerous substance and its effects on his own offspring, worries which are not comforted by the company. This is not very much information, nor does it make these people into living, breathing, three-dimensional characters,(79) nor tell us the human story behind the lawsuit. By comparison to most of the court pronouncements in this case, however, it is a quantum leap. In addition, this passage (in particular, the image of Donald Penney) puts one more nail in the coffin of Johnson Controls's own character. Were the company truly interested in protecting the offspring of employees, rather than in discriminating against women, would it not have helped Penney with his plan to lower his own lead exposure? By implication their interest in health is phony; they want to discriminate. We can applaud Blackmun for beginning to humanize the workers in this case, but he does so as though he were their own advocate, taking yet another opportunity to dehumanize the company.(80)
Blackmun comes close to overtly questioning the company's sincerity in Part V of the opinion, saying that "Johnson Controls' professed moral and ethical concerns about the welfare of the next generation do not suffice to establish a BFOQ of female sterility."(81) In the same paragraph, he puts the matter in more gruesome terms, saying that the law does not "allow a woman's dismissal because of her failure to submit to sterilization."(82) This calls up an almost inescapable image of Nazi concentration camps, or the court-sanctioned forced sterilization that has appeared in the United States.(83) Johnson Controls has moved from an insincere employer to a tyrant that commits thinly-disguised atrocities.
Blackmun's desire to have his reader question the company's sincerity serves a functional role in his argument. In Part VI, he devotes considerable space to an issue which, as he says, "is not before US":(84) Whether the company's fear of its liability to the offspring of its employees should effect whether the company can establish a BFOQ. It is one of his major disagreements with White and Scalia.(85) By the time Blackmun reaches this argument, his insinuations about Johnson Controls from the beginning of the opinion have predisposed his reader to believe that the company has no genuine concerns in this case, and that its stated concerns are merely a smokescreen for misogyny.(86) It then seems perfectly natural for Blackmun to treat this issue as he does, mentioning it as an aside that is not part of his main argument.(87)
If Blackmun predisposes his reader to distrust the respondent against whom he is going to rule, how does he characterize the lower court he is going to reverse? In a brief passage in Part III of the opinion, he defines the lower court. Blackmun first tells us that "[t]he bias in Johnson Controls' policy is obvious," paving the way for application of the BFOQ rather than the business necessity defense.(88) He makes it look absurdly simple. First, he recites the terms of the policy: "Fertile men, but not fertile women, are given a choice as to whether they wish to risk their reproductive health for a particular job."(89) Second, he recites the prohibitions of [sections]703(a) of the Civil Rights Act,(90) and baldly concludes that the policy violates the section.(91) Then he says:
Nevertheless, the Court of Appeals assumed, as did the two
appellate courts who already had confronted the issue, that sex-specific
fetal-protection policies do not involve facial discrimination.
These courts analyzed the policies as though they were facially
neutral, and had only a discriminatory effect upon the employment
of women. Consequently, the courts looked to see if each employer
in question had established that its policy was justified as a business
necessity.... The court assumed that because the asserted reason
for the sex-based exclusion (protecting women's unconceived offspring)
was ostensibly benign, the policy was not sex-based discrimination.
That assumption, however, was incorrect.(92) At this point, Blackmun's reader is led to wonder what kind of fools inhabit the major avenue of federal appeal for eleven states. It would seem that there are no messy complexities that would make this aspect of the decision a difficult one, that the answer is obvious, and that a total of thirteen appellate judges have just goofed by "assuming," and failing to think the problem out.
What is missing from Blackmun's treatment of the subject is acknowledgment that the question is a difficult one, or that the interrelationship of three concepts -- fetal protection plans, facially discriminatory policies, and BFOQs -- is more or less than a simple equation. What is also missing is acknowledgment that the Fourth, Seventh and Eleventh Circuits, far from "assuming" anything, agonized over the question of whether the discrimination was "facial" or not and which defense theory to apply, devoting pages to the issue and consulting each other on its complexity.(93) Each Court of Appeals came to this part of its decision by following what appeared to be indications from earlier Supreme Court cases that these concepts were not related in a simple, obvious way, but in a more subtle and complex one.(94) Blackmun does not acknowledge this.
For Blackmun to say explicitly, "the Seventh Circuit's complicated work on this issue, as well as that of the Fourth and Eleventh Circuits, is worthless; they cannot add two and two," would be a frank insult to the lower court. To do it implicitly is to ignore any participation of the lower court in the community of careful, intelligent judges. Their ideas are not worthy of discussion. Their thoughts are not important. Granted, it is the role of a higher court to review the decisions of a lower one, but there are different ways of doing this. To the extent that, they are actors in this drama, the lower court judges (with the possible exception of Judge Easterbrook) are trivial.(95) They do not appear in Blackmun's. text as independently creative minds entitled to respect or deference. He does not attempt to engage in a dialogue with them, working with and responding to their logic and ideas. Just as the respondent Johnson Controls lacks genuine needs or concerns, so the Court of Appeals lacks genuine thoughts. Both have been defined so that they need not be dealt with seriously.
Inevitably, Blackmun defines himself as he is defining the lower court. As I have indicated, he does not seem to see, or does not choose to acknowledge, that there are complicated questions in selecting the proper defense theory, although the many pages of analysis devoted to this question by the circuit courts implies that there must be.(96) Nor does he admit that earlier Supreme Court decisions gave any conflicting or confusing indications to the lower courts as to how those theories were to be applied. What kind of voice either does not see complexity or deliberately ignores it? To deny complexity is to deny the need for, and value of, what we think of as original thought. If rules are to be applied in a technical, detailed way, without concern for hidden meanings, ambiguities, subtleties, or difficulties, then there is little need for thought to be creative, imaginative, inuitive, synthesizing, or integrative. Here, again, is the voice of the bureaucrat: The rulebook means only what it most obviously says, and is designed to be read word-for-word; subtlety does not enter into it.(97)
Could there be any strategic value in so defining the lower courts and oneself? If the lower appellate courts are prone to such obvious errors, then the need for a Supreme Court to oversee them is enhanced. Blackmun's own role is more important, and his decision more significant. This case represents that most paradigmatic of the Court's supervisory responsibilities, the circuit split.(98) When the lower courts are at odds, and making stupid mistakes on top of it, then it is important to listen to, and to follow, the decisions of a Supreme Court justice who does not make such mistakes. However, one can imagine pragmatic drawbacks to this rhetoric. A Court of Appeals judge who genuinely believed Blackmun's characterization of her incompetence might be inclined to avoid deciding difficult technical issues altogether. Worse, she might start fulfilling Blackmun's expectations, actually behaving the way he characterizes her, making too many assumptions and ignoring the obvious.
What is the role of Blackmun's reader in this characterization of the lower court opinions? A reader may be struck by how silly the circuits look in Blackmun's opinion. Later, upon examination of the appellate decisions, he may be impressed by how unfair Blackmun's characterization of them seems. It seems difficult to imagine a relationship between Blackmun and his reader, here, in which the latter is an equal partner. Perhaps the reader is supposed not to have read the lower court decisions in any of the three cases. In that case, Blackmun is deliberately misinforming him about how the case was handled. He is rewriting history, and it does not matter whether we know the truth. Indeed, in a hundred years, it is likely that no one will actually remember what the lower courts in Hayes, Wright or Johnson Controls actually said; Blackmun's version will stand alone. To the detailed, bureaucratic administrator, it may not matter whether his reader understands any particular part of his argument, so long as she follows the main points and/or the conclusion.(99)
To what extent does Blackmun's performance as an interpreter of statutes and precedents confirm or confound the expectations his voice has raised about himself? The main legal exercise of this case is statutory interpretation. Three statutory questions arise: (1) When is it appropriate to use the BFOQ defense as opposed to the business necessity defense? (2) What does the BFOQ defense mean -- specifically, can the protection of fetuses be a BFOQ? (3) What effect does the PDA have on either of the other two questions? As a side issue, the justices also discuss whether the presence of Title VII and the PDA pre-empt any state tort law that would make the company liable to future children.
In part IV his opinion, Blackmun addresses the question of the meaning of the term "BFOQ". First, he quotes the language of [sections]703(e)(1), which contains the BFOQ.(100) Then he reminds us that the defense is an explicitly narrow one, and that both its language and its legislative history bear this out. He then proceeds to a meticulous recital of the "terms of restriction" contained in the section, focusing, finally, on the word "occupational." He determines that the word "occupational" means that in order for sex to be a BFOQ, it must "affect an employee's ability to do the job."(101) He chides Justice White's concurrence for saying that the word "occupational" merely means "job-related," and hence is anything the employer wishes to make a job requirement. Blackmun says that this would render the word "mere surplusage."(102) He explains that while the need to avoid danger to third parties has, in some cases, been regarded as a BFOQ, danger to the female employee herself bas not. Indeed, he says, in all cases where danger gave rise to a BFOQ, it also interfered with the "essence" of the employer's business or its ability to carry out its "central mission".(103) He goes on to say that the PDA specifically limited the scope of the BFOQ to exclude issues of pregnancy, and cites a passage from the Senate Report on the bill to support his argument.(104) Since danger to a fetus does not affect a woman's ability to do her job, preventing it cannot be a BFOQ. While there may be dangers to fetuses from a pregnant mother's decision to work, Congress has left the decision of whether to risk that danger to the woman herself.(105)
Blackmun's interpretation of the meaning of "bona fide occupational qualification" shows respect for, and attention to, the text of the statute itself. He observes that several words of restriction appear in the statutory language, designed to narrow the defense, and concludes that "occupational" is the narrowest of all. What is interesting about this observation is that the employment of highly specified and modified language that Blackmun sees in the statute may also be seen in his own writing in this case. The first paragraph of the opinion, as noted above, contains a series of modifying terms, showing the narrowest possible application of Blackmun's language. Just as the statute gives a BFOQ only in "|certain instances' where sex discrimination' is |reasonably necessary' to the |normal operation' of the |particular' business,"(106) So Blackmun is concerned only with an employer who excludes a "fertile female" from "certain jobs" because of its "concern" for the "health" of the "fetus the woman might conceive."(107)
Blackmun has already demonstrated that he understands the use of narrow language, that he can use it himself effectively and mean exactly what he says. Thus, by implication, he knows narrow, qualified language when be sees it, and is qualified to interpret the meaning of the narrow language in the statute. Now his obsession with details and narrow business concerns, his bureaucratic pedantry, takes on an entirely new meaning: It bolsters his legitimacy as a reader of this statute. He seems to be saying, "Section 703(e)(1) was designed for interpretation by a bureaucrat; it simply begs to be read narrowly and pedantically. It is itself a mass of detail piled upon detail. Hence, someone obsessed with details is the best one for the job."
Indeed, it is the meaning of details upon which Blackmun bases some of his more important arguments. He dwells on the meaning of the word "occupational" in the statute. He says that it refers to those things that "concern job-related skills and aptitudes."(108) The concurring justices, especially Justice White, will disagree with that definition, and Blackmun's response to them is characteristic. The word cannot be there by accident; it cannot be "mere surplusage" because every detail has its significance. The suggestion by White that any requirement for employment is "occupational" glosses over a detail that is in the statute; otherwise the term would be merely "bona fide qualification," without the modifying word "occupational." White is not paying proper attention to the details that are Blackmun's demonstrated specialty.
This attention to detail also harmonizes with a more general principle of statutory interpretation -- the principle that nothing is in a statute by accident, that everything has its meaning. This is a way of respecting the author of a text. By assuming that everything is placed there deliberately, we treat the author as someone who is as capable, careful, and intelligent as ourselves. We also display confidence and respect in our own abilities as interpreters. Once we have determined that each word is purposefully included and has a meaning, we must use all our skill to determine exactly what that meaning is. It would be appropriate to accord that respect to any author. Here, the author is the Congress of the United States, a coordinate branch of the government. Blackmun's method thus serves an important governmental function. He does not merely go through the motions of deferring to Congress, as all appointees to federal judgeships do in their confirmation bearings. His method demonstrates that he takes Congress seriously. He will apply all the rigor of his intelligence to every word it utters.(109)
The same attention to detail appears as Blackmun determines the effect of the PDA on Title VII, and especially on the BFOQ defense. Blackmun bases his argument on the second half of the PDA. After broadening the meaning of sex discrimination in Title VII, the PDA goes on to say, "and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work...."(110) Blackmun takes this language to be an explicit statement that the only women who may be discriminated against based on pregnancy or related conditions are those whose ability to work is affected by those conditions. Thus the PDA contains "a BFOQ standard of its own."(111) This is another point on which Blackmun and White disagree, and once again Blackmun's response to White is characteristic: White can conclude that the PDA did not alter the BFOQ only "by ignoring the second clause of the Act."(112) Again, Blackmun sticks to the words of the statute, maintaining that nothing is there by accident. The words of the PDA must mean what they say, forbidding discrimination based on pregnancy except in one specific situation. Otherwise, the Court must treat the words as mere surplusage, meaningless details. In this opinion, Blackmun treats nothing in a statute as a meaningless detail.(113)
There are two noteworthy statements in the conclusion of Blackmun's opinion in Part VII. First, Blackmun tells us that his ruling is "neither remarkable nor unprecedented," that "[w]e do no more than hold that the Pregnancy Discrimination Act means what it says."(114) Nothing revolutionary, we are being told, is happening here; no judicial activism is attacking the Congress, and there's nothing to worry about. Second, he reminds us that the choice of whether a woman's reproductive role is more important than her economic role is not a matter for the courts to decide, any more than it is for the employers to decide; Congress has given that decision to the woman herself.(115) He de-emphasizes his own importance in the scheme of things, while simultaneously elevating that of Congress and the individual, a contrast to his description of the lower court opinions, which made him seem more important. These actions seem designed to remove any feeling that the Court is doing something important, or is acting as anything but a conservative, slow-moving body that interprets the statutes of Congress as they arise in genuine disputes between litigants. We are reassured that Blackmun knows, and approves of, his limitations.
Yet buried in this reassurance are two bits of language that could be seen as critical of existing culture -- the observation that the protection of potential offspring is the age-old excuse for oppressing women, and the comment that the choice of whether a woman's reproductive role or her economic role is more important is hers alone to make.(116) Rather than make these statements in a challenging way, Blackmun has hidden them in the language of tradition, perhaps making them more palatable for the conservative reader. He wants to say these things, which are not necessary to his decision, but will not hand them to his reader as bald statements. We are to feel that he is only a judge, doing what judges do. Yet beneath this orthodox face is a heart that challenges orthodoxy.
Blackmun, then, speaks in the voice of one wedded to tradition, fascinated by detail to the point of pedantry, masterful in his use of detail, sympathetic to the lives of ordinary people, but rigorous enough to render an objective judgment. Yet at the same time be betrays his own partiality, disdain for the lower courts, and radical leanings. Not only are these two voices dissonant, but one disguises the other; the voice of the detailed, dispassionate technician is a cover for the disdainful and dismissive partisan. The judge is a hidden advocate.
Justice White: In the Service of Power
Justice White's concurrence is considerably shorter than Blackmun's majority opinion, devoting itself primarily to the issue of whether it would be possible for Johnson Controls to establish a BFOQ. He agrees with Judge Posner that such a defense would be possible, if difficult, to prove, but that extreme cost considerations could give rise to a BFOQ under the right circumstances. Like Posner, White feels that summary judgment for the defendant was inappropriate because the record was insufficient to show that there was no genuine issue of material fact.
White's focus is understandably different from Blackmun's. Where Blackmun was concerned with whether the policy was valid, White is concerned with whether Blackmun's decision is valid. White's own introductory paragraph, preceding his first numbered section, says three things: (1) the Court is right to use the BFOQ in this case; (2) the Court is wrong to hold that the BFOQ defense "is so narrow that it could never justify a sex-specific fetal protection policy"; and (3) White nonetheless concurs in the judgment because the Court of Appeals should not have affirmed the summary judgment.(117) In all three of these sentences White's attention is on the majority. The Court was right in doing this, but wrong in doing that, but right in doing that other thing. Indeed, White is almost that plain. He does not say that he agrees with the BFOQ defense but disagrees with its application; he says that the Court "properly" did one but "erroneously" did the other.(118) His language does not admit room where reasonable minds can disagree; he is right and Blackmun is wrong. There is something attractively direct about this tone, but also something less attractive and imperious about his certainty.
White's focus on Blackmun prevents him from talking about the question of difference in this case. To the extent that he talks about women in general or pregnant employees in particular, they are secondary concerns. Indeed, White's compelling expression of the needs and worries of the company(119) is a stark contrast to any attention he gives to the workers. The central problem in this type of case -- how to talk about pregnant women employees in contrast to other workers -- seems to find no expression here.
The structure of White's opinion follows the order of the last two sentences of his introduction. First he tells us why Blackmun is wrong about how to apply the BFOQ defense, and then he explains why he is concurring anyway. Interestingly, he devotes no space at all to choosing the BFOQ as the proper defense; he seems to adopt Blackmun's language wholesale. His opinion is "all business;" there is none of the meandering into early facts, nor the characterization of the actors or the lower courts, that one finds in Blackmun's opinion. White has only two things to say, and he says them. One could almost call his tone brusque. He seems to want to get right to his point and leave.
His attack on the language of the statute itself is odd. Like Blackmun, he claims to focus on the actual words -- "the proper starting point is the language of the statute."(120) But as soon as he makes that claim, he proceeds to avoid those very words. He dispenses with any use of the word "occupational" in a footnote, saying that "occupational" merely means related to a job, and hence Johnson Controls's requirement is an occupational qualification. White says that Blackmun lacks any supporting authority for his use of the word, but then White fails to cite any authority of his own, beyond a dictionary.(121) He recites the statute's requirement that a BFOQ must be "reasonably necessary" to the "normal operation" of an employer's business, but then avoids the meaning of those words. "Common sense tells us that it is part of the normal operation of a business to avoid causing injury to third parties, as well as to employees, if for no other reason than to avoid tort liability and substantial Costs."(122) This use of the language, like his use of "occupational," drains its meaning; anything the employer normally does becomes "reasonably necessary to the normal operation of its business." Unlike Blackmun, White is not attempting to master details. Rather, he is focusing on the "spirit" of those details, what "common sense" tells him they must mean. He relies more on his own instincts than on what the legislature has said, yet he establishes no basis, beyond his own certainty, upon which we are to rely on those instincts.
As indicated above, White thinks that the company has a legitimate interest in protecting itself against later liability to the children of employees for injuries resulting from prenatal lead exposure. Blackmun challenges this assertion on the ground that since Title VII forbids the company to have a fetal protection policy, that prohibition preempts any state tort liability for failing to have one.(123) White disagrees with this proposition, or at least thinks that it is "far from clear" that Blackmun is right about it.(124) Both of their positions appear to be based on precedent. How do they use that precedent?
In a footnote, White cites three Supreme Court cases and one Ninth Circuit case, giving parenthetical, sentence-fragment summaries of their holdings.(125) Blackmun, by contrast, refers to three Supreme Court cases in the main body of his opinion. For two of those cases, Blackmun states the context of the cases, their holdings, and their applicability to the issue under discussion. The other case is merely cited, without explanation, as an example of the proposition he is stating.(126) Blackmun's use of cases is both logically and rhetorically a reply to White's. He begins by showing that White is not citing cases properly but using them for holdings they do not have. For example, White has cited California Federal Savings & Loan Assn. v. Guerra(127) for the holding, "state statute requiring the provision of leave and pregnancy to employees disabled by pregnancy not preempted by the PDA."(128) Blackmun points out that Guerra held that there was no preemption because state law in that case
was not inconsistent with the purposes of the federal statute and
did not require an act that was unlawful under Title VII. Here, by
contrast, the tort liability that the concurrence fears will punish
employers for complying with Title VII's clear command. When it
is impossible for an employer to comply with both state and federal
requirements, this Court has ruled that federal law pre-empts that
of the States.(129) Thus Blackmun shows that the holding of Guerra is effectively the opposite of what White claims it to be.
Blackmun does not specifically address the other three cases cited by White. When one examines those cases, however, one finds that they are in precisely the same posture as the one Blackmun describes for Guerra. Both English v. General Electric Co., which is cited by White as saying "state law action for intentional infliction of emotional distress not pre-empted by Energy Reorganization Act of 1974" and Silkwood v. Kerr-McGee Corp., which is cited by White as saying "state punitive damage claim not pre-empted by federal laws regulating nuclear power plants"(130) involved situations where the conduct punished by state law was the same conduct punished by federal law, and the question was whether alternative federal and state schemes of punishment could exist simultaneously. In a case involving prenatal injuries caused by an employer's failure to keep women out of high-lead jobs, the situation would be exactly the opposite. The state law would be punishing the behavior required by federal law.(131) Blackmun here establishes, once again, the preeminence of his attention to detail; a sentence-fragment summary of a holding does not do as well as exploring the cases for what they actually say. He has also established that he interprets cases in context, while White imagines that they stand for simple, static propositions of law.(132) By leaving White's other cases to his reader to examine, he also establishes that he can be trusted not to mislead about Supreme Court precedent, whereas White cannot.(133)
The treatment of one particular bit of precedent displays a striking contrast between White's and Blackmun's methods and languages. Blackmun turns to Farmer's Union v. WDAY, Inc.(134) to support his own argument that Title VII does pre-empt state law claims for prenatal injuries. He recites the context of the case (which involved a state libel lawsuit against a television station arising out of the broadcasting of statements which the Federal Communications Act required the station to broadcast) and the holding (that the federal statute precluded the state tort law action), and he quotes a passage from the case.(135) This sequence of steps -- context, holding, quotation, followed by analogizing the precedent to the current case -- could serve as a textbook example of the use of precedent. It is convincing not only because the case really says what Blackmun says it does, but because he has used familiar, transparent methods to arrive at his conclusions. White's telegraphic and incomplete use of precedent stands out by contrast as being unreliable and opaque. We can follow Blackmun's logic, and when we do read the cases we find that they support it. But White gives us no logic to follow, and the cases do not, standing by themselves without further explication, appear to support his arguments. Blackmun gives us a roadmap; White gives us orders.
By way of further contrast, White never mentions WDAY at all, although he plainly disagrees with Blackmun's conclusions about preemption. This silence is puzzling. When Blackmun was generally silent about cases cited by White, he did make one blanket comment about them -- the cases were "inapposite."(136) White's silence tells us nothing. In other circumstances, this silence could have been an effective device. If Blackmun's arguments had been sufficiently silly, this silence of White's might suggest that they were not worthy of a response, implying that Blackmun had said nothing interesting or worthwhile. But here Blackmun's precedential point seems well taken, and one expects some response from White. Does White think the case is inapplicable? Does he think it was wrongly decided? That Blackmun's interpretation is misguided? Conversely, perhaps he does think that Blackmun's point is well-taken, and is being silent precisely because he does not have a response. We do not know what White thinks, because he will not tell us; we are left to wonder. By refusing to talk to his reader about this case, White implies that he either does not expect us to have read it, does not expect us to notice that he did not reply, or considers it to be of no consequence whether we notice or not. This bears an unpleasant resemblance to Blackmun's apparent lack of concern for whether his reader noticed his mischaracterizations of the lower court opinions.(137) White has defined himself as enigmatic at best, arrogant at worst.(138)
The juxtaposition of White's and Blackmun's views on the possibility of tort liability for the employer displays a difference in their image of the legal system as a whole. Consider both the structure and actual language of White's comments on the subject. After calling the avoidance of tort liability part of the "normal operation of a business," he says that Blackmun is merely "speculating" that liability is a remote possibility. White continues:
Such speculation will be small comfort to employers. First, it is far
from clear that compliance with Title VII will pre-empt state tort
liability, and the Court offers no support for that proposition. Second,
although warnings may preclude claims by injured employees, they
will not preclude claims by injured children because the general
rule is that parents cannot waive causes of action on behalf of their
children, and the parents' negligence will not be imputed to the
children. Finally, although state tort liability for prenatal injuries
generally requires negligence, it will be difficult for employers to
determine in advance what will constitute negligence. Compliance
with OSHA standards, for example, has been held not to be a
defense to state tort or criminal liability. Moreover, it is possible
that employers will be held strictly liable, if, for example, their
manufacturing process is considered "abnormally dangerous."(139)
This passage is striking for the image it presents of the legal system as a dangerous wilderness or minefield in which an employer cannot help bumping into liability despite its best efforts. It is "far from clear" that liability will be pre-empted; the Court's words will be of "small comfort" to employers; case law that protects the employers against employees may not protect them against offspring; it will be "difficult for employers to determine in advance what will constitute negligence"; complying with the law doesn't help employers avoid negligence; even if negligence is not present, strict liability is lurking in the shadows. There is nothing the employer can do. The law is unpredictable and hazardous, and the only way that an employer can successfully insulate itself from liability is to cut off contact with women. One part of the law does not necessarily help a citizen deal with another part of the law. The law is out of control. This image of the system is not unfamiliar. It is the rallying cry of business executives and conservative politicians. It is surprising, though, to hear it in the mouth of a judge, a legal insider who might be expected to imagine the legal system as a coherent, functioning whole.
Blackmun, by contrast, does see negligence liability as being part of the law as an organic whole. The company claims to comply with OSHA standards and OSHA doesn't think that exclusion of women is necessary. "Without negligence, it would be difficult for a court to find liability on the part of the employer." If an employer complies with Title VII by banning fetal-protection policies, then tort liability for them is remote, because the cases indicate that federal law would pre-empt any state law liability.(140) The different parts of the law are connected. OSHA requirements and Title VII requirements are both connected to negligence liability, and the law will not be inconsistent by requiring an action on the one hand but condemning it on the other. It is not unpredictable, not out of control. It is rational, consistent and sensible.
This distinction in their view of the legal system affects their legitimacy as speakers of law. Both White and Blackmun, after all, are speaking in their roles as high-ranking judicial officers. Each has a claim of authority, a claim that what he is saying is worth listening to. To a large extent, that claim rests on his judicial role. It is because they are judges, part of the legal system, that we are listening to them at all. Were White merely an individual businessman his views on the law might be important, but they would not receive the kind of serious attention that a concurrence in a Supreme Court decision receives. But he is implying that this legal system, from the top of which be is speaking, is unpredictable, illogical and cruel. What, then, does it mean for White to be where he is? He claims authority as a representative of a system that is out of control. Blackmun, by contrast, by representing the law as consistent, rational and sensible, bolsters his own claim of authority as its representative; his voice is worth listening to because the law is worth listening to. An alternative analysis of these passages might point out that no one is better placed to criticize an institution than one of its own leaders. Consequently, White's doubts about the system that gives him authority are entitled to serious consideration, because someone must be very worried to raise questions about the very thing that gives him power. Blackmun's words in support of the legitimacy of the legal system, by contrast, tell us nothing interesting, because he is merely lending support to his own power.(141) But it is one thing to point out flaws in a system, and quite another to paint it as irrational and dangerous. A person associated with an institution can criticize it up to a point without losing her own credibility. One criticism, and the reader's attention is grabbed: Here is someone who knows what she's talking about. But the broader the condemnation becomes, the more the reader is tempted to question the writer's own participation in the system: If she thinks it's so bad, what's she doing there?
More importantly, in addition to the control over the legal system that judges obviously have, the act of speaking about the legal system re-creates it. Blackmun's painting of the legal system as sensible and logical suggests that that is the sort of legal system we ought to want. Plainly it is the sort he wants. But White's vision gives us nothing to hope for, no alternative view. Obviously he doesn't like it this way, but what does he want? The problem with this particular sort of pessimism is that without more, it becomes a self-fulfilling prophesy.
A final issue is raised by White's and Blackmun's discussion of the Guerra case. Blackmun, while arguing that the PDA limits the BFOQ in pregnancy cases to those involving the ability to work, reminds White of his own words, from Guerra:
Until this day, every Member of this Court had acknowledged that
"[t]he second clause [of the PDA] could not be clearer: it mandates
that pregnant employees 'shall be treated the same for all employment-related
purposes' as nonpregnant employees similarly situated
with respect to their ability or inability to work." California Federal
S. & L. Assn. v. Guerra, 479 U.S. 272, 297 (1987) (White, J.,
dissenting). The concurrence now seeks to read the second clause
out of the Act.(142)
This attack on White is similar to the one Blackmun leveled at Johnson Controls earlier. He is implying that White used to know better, or that be is deliberately ignoring what he does know to be true.
White responds in a footnote:
Contrary to the Court's assertion, neither the majority decision
nor the dissent in [Guerra] is relevant to the issue whether [sic] the
PDA altered the BFOQ standard for pregnancy-related discrimination.
In that case, the Court held that the PDA did not preempt a
state law requiring employers to provide leave and reinstatement
to pregnant employees. The Court reasoned that the PDA was not
intended to prohibit employment practices that favor pregnant
women. The dissent disagreed with that conclusion, arguing that
the state statute was preempted because the PDA's language that
pregnant employees "shall be treated the same for all employment-related
purposes" appeared to forbid preferential treatment of pregnant
workers. Obviously, the dispute in that case between the
majority and the dissent was purely over what constituted discrimination
under Title VII, as amended by the PDA, not over the scope
of the BFOQ defense.(143)
Here, each of these judges is impugning the other's status as a reader of texts: Blackmun accuses White of not being true to his own words, and White accuses Blackmun of misreading. What are the merits of this disagreement?
A fair reading of White's dissent in Guerra does indeed show that the major bone of contention was whether the PDA permits preferential treatment of pregnant women.(144) However, it is also true that at least some of his language in that dissent focused on the importance of that second clause in [sections] 701(k), stressing that pregnant women are to be treated the same as all others except inasmuch as their ability to work differs.(145) Blackmun is suggesting that White's earlier words mean only what they say. White is saying that those words must be read only in the context of the larger argument being made at the time.
Is either of these positions, in this situation, more "honest" or "decent" or "respectful" than the other? We are not dealing with the extreme forms of either decontextualized or over-contextualized readings. The text being discussed was written by White, in reply to a viewpoint in which Blackmun joined, only four years prior to this decision. Blackmun is saying, "Here's what you said just four years ago; you agree with me." White is saying, "I used those words only to prove a point that has nothing to do with the one we are discussing now; don't quote me out of context." Blackmun accuses White of being a hypocrite. White accuses Blackmun of deliberately distorting the record.
But it is White's own words from which he is backing away. Although White's use of this language in Guerra does support his argument there, it also states clearly that the PDA was meant to prevent discrimination against or for pregnant women except where their ability to work is concerned. What is White now telling us about his own language then? Is he telling us to disregard the apparent meaning of his words until he (later) tells us what those words really meant? Is he instructing us to look at context only, and not perform a "close" reading of his texts? An author probably has the privilege of suggesting how his composition should be read, but what is our function as readers, given White's position? Or, to put it differently, what sort of readers is he asking us to be?
If he is telling us that his own interpretation is required before we can understand the meaning of his words, then we have no interpretation of our own to perform. His position would then be entirely authoritarian: "Do not form an opinion until I tell you to." Such a position would be rhetorically intolerable, because it would require his reader to completely submerge her own intelligence and independence until "the boss," White himself, took over.
But there is a more charitable reading of White's position. He can be seen as saying that a good reader of his text would have come up with this interpretation on her own. What sort of a reader would this be? How would she think? To reach White's interpretation of his dissent in Guerra, a reader would have to adopt the view that legal language, even in the mouth of a Supreme Court justice deciding a case, is instrumental. That is, she would need to believe that the purpose of legal language is to prove a point or win an argument, and that the meaning of such language is derived from the point being proved or the argument being waged. Hence, even if the text clearly says, "pregnant employees |shall be treated the same for all employment-related purposes' as nonpregnant employees similarly situated with respect to their ability or inability to work," those words are not to be taken literally unless the argument in which they are being used would be strengthened by taking those words literally. To adopt such an attitude is not merely to take context into account; it is to see the meaning of language as wholly dependent upon the instrumental purpose for which the language is used.
But this view of language has unfortunate consequences. The reader who thinks this way must think of legal language as a tool for making other people do things. Looking through such a lens, she would have difficulty imagining someone using legal language to open his mind to another, to educate his listener, to grapple with difficult decisions or to express truths which will be understood and cherished by both speaker and listener in the future. The complex uses of language become enormously simplified; no truth exists behind or within the text; no desire supports it other than the desire to win.(146) White uses language in the service of power.
Justice Scalia: Talking to Himself
Justice Scalia's opinion is the shortest of the three, containing six brief paragraphs. The contents of those paragraphs may be summarized as follows: (1) he generally agrees with Blackmun's analysis; (2) because of the PDA, it makes no difference whether males were also affected by lead; (3) because of the PDA, it makes no difference whether all pregnant women placed their children at risk, so that discussion of that point is also irrelevant; (4) the fact that Title VII would preempt state tort law does not tell us what Title VII requires -- the BFOQ needs to be analyzed separately; and (5) extreme costs could, in the right circumstances, support a BFOQ defense; Scalia agrees with White on that point.(147)
At the outset, one might wonder why Scalia bothers to concur separately at all. Almost every point he makes is tangential to the decision of the court or already spoken by someone else. Saying, for example, that Blackmun need not have mentioned evidence of male exposure to lead appears to add nothing to the debate; indeed, one imagines that Blackmun would probably agree. These comments of Scalia's have a ring of "fine-tuning" about them. It is as though he liked almost everything the Court said, but wished that a few sentences here or there had been put slightly differently. One can imagine several purposes or functions behind adopting such a tone. Perhaps be does not want even a suggestion of a loophole for employers, desiring that the Court send a clear, unequivocal message. In light of his comment that costs could constitute a BFOQ, however, it seems unlikely that such is his agenda. Perhaps he sees himself as a proponent of pure logic, unsullied by mundane concerns, and so feels it necessary to object to even the smallest logical inconsistency. Perhaps he simply wants his own voice to be heard.
Scalia is selective, commenting on only a few fine, minor points in a much larger argument, but unwilling to join the argument because of those few points. His voice is fussy, like the voice of someone who refuses to answer an otherwise clear question because one or two of the words in that question are open to misinterpretation. It sounds much like the voice of a teacher commenting on a student paper, or an editor(148) commenting on the work submitted by a writer: "I like your piece overall, but you really should tidy up these loose ends."(149) This voice does have a ring of superiority, but not the caricaturing superiority employed by Blackmun or the authoritarian superiority of White. This voice is comparatively neutral and detached, almost as if Scalia were standing outside of the discussion and commenting on it from above.
There is something pleasing and "judicial" about such a tone. It is good for a judge to be detached, rational and concerned with logical consistency. It inspires a certain amount of confidence in the legal system for a reader to imagine a judge who is more concerned with getting the law exactly right than with anything else. Here is a judge upon whose intellectual integrity we may rely. But is Scalia making himself too detached, too fussy? The usual practice, after all, is for judges who largely agree on the main issues to compromise, changing a few paragraphs here and there in order arrive at an opinion in which everyone can join. There may be sacrifices in the purity of the reasoning in order to have a unified decision.(150) By making his fine points of logic and articulation separately, Scalia is breaking with that tradition -- and it seems to be an habitual practice of his.(151) He is not acting as a "team player." Instead, he is standing out from the rest of the Court for no important reason.
Further, at no point in his opinion does Scalia cite any precedential authority whatever. He names the PDA twice and refers to other opinions in this same case, but earlier decisions of the Supreme Court do not play any role in his words. His authority as an interpreter comes entirely from within, and his claim to that authority is based on his detachment and his ability to spot minor discontinuities in other people's reasoning. He seems concerned more with his own elegance of thought than with the decisionmaking process of the Court. This voice is not seriously engaged in the struggle at hand; consequently, it is hard to take it seriously.
CONCLUDING THOUGHTS
While I have found things to admire in all of the opinions of the Johnson Controls case, I have been most impressed by the impoverishment of language. Blackmun creates a world in which the forms of tradition and impartiality mask his own attempts to prejudice the reader against both a litigant and the lower courts. Although the Congress and the precedents of the Supreme Court are treated with respect and intelligence, no one else is. The reader is misinformed and misled. White treats language as a tool for tactical victory, and treats his reader as an underling: everything and everyone is instrumental; the legal system itself is a chaotic, illogical mess in which his own role is perplexing. Scalia stands outside of the discussion and comments on it for no apparent reason and with no apparent effect. His authority comes only from within, and it seems to be only his own thoughts that interest him: he is talking to himself.
The actors in these opinions seldom appear as real people. The Congress, while sometimes drawn as powerful and deliberate, is disregarded just as frequently. The lower courts are bumbling incompetents. The Supreme Court itself, far from being the arbiter of justice, the visionary reader of truth, or even a highly skilled professional body, appears to see itself as enlightened middle management. The precedents of the Court, while sometimes having serious meaning as attempts to talk about the law, are also sometimes just strategic moves in a chess game. The reader of the case is either ignorant or ignored. Most important in a discrimination case, the parties in this lawsuit, especially the workers themselves, do not have a voice here. The company is caricatured by Blackmun and rehabilitated somewhat by White, but where are the workers? Where are their concerns?(152)
In life outside of this decision, one imagines the workers' concerns to be several. For one thing, they do not wish to be denied advantageous employment, with higher wages, simply because of their sex. Put more simply, they do not want to be denied these positions at all. In addition, they are probably concerned about their own health and the health of their children and the way that health could be affected by lead.(153) But I suspect that the reality of these workers' lives, and their connection to and concerns about this lawsuit, are more complex than any of the opinions suggest. We begin to see a fragment of their lives in Blackmun's description of three litigants. Later he tells us that as parents they "conceive, bear, support and raise" their children, but even there he speaks of them in the context of describing authority granted by Congress. In that scheme, the institution precedes the people.(154)
Of the three voices here -- the bureaucrat, the commander, the editor -- none appears particularly attractive as a source of authority in the law. Given a choice among the three, I would favor Blackmun's voice, because it honors an authority outside of itself, but I would not be happy about the choice. Are there other options? What would "good rhetoric" look like in this case?
Obviously there are many different directions a writer might take in a case like this one. At a minimum, an admirable voice would envision the workers as ends in themselves rather than means to an end and treat them and their concerns seriously. It would also treat the employer seriously, imagining it to have real concerns. The judge would grapple honestly with difficult precedential issues and acknowledge the conflicting signals the Court may have given the lower courts. She would respect the meaning of a statute as much as possible, not removing it from context or inventing motives for the legislature. To the extent possible, she would avoid imagining the Congress as ignoble or craven. Her relationship with precedent would be complex and serious. She would not apply earlier decisions in a simpleminded manner, but would treat them as having substance. The reasoning of each decision would be as important as its "holding," and the opinion would recognize that no two cases are identical and that some transformation is part of the interpretive process. Such an opinion would not necessarily differ in its "result" from the results here.
But if the result and even the reasoning remain essentially unchanged, then why care about the language or rhetoric in these opinions? I maintain that justice changes when its idealized world changes. If, for example, one accepts the world created by Blackmun then certain kinds of serious conversation become impossible. How can one talk about balancing the litigants' concerns in any meaningful way when Blackmun, who claims objectivity and detachment, sabotages any hope for balance in his first two sentences? How can one have any conversations of any kind in White's world, where language means exactly what he needs it to mean in order to win his argument, and all definitions are handed down from above? What is at stake is the ability to talk about the law at all. And talking, to a large extent, is what judges do.
The laws that fight discrimination are an acknowledgment that the world as it exists is imperfect and needs to be reorganized. A decision interpreting those laws is an opportunity to take a step, of indeterminate size, towards recreating and reconstituting the world. The words used to reach the decision are the things that remake the world. Words do not simply enter the air and vanish. They take on substance, they make people what they are, they make chains or break them. To speak is to take on the awful responsibility of creation.(155) (1) Marion Bradley, The Mists of Avalon ix (Michael Joseph 1983) (1982). (2) See James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (1990) [hereinafter White, Justice as Translation]; James Boyd White, Heracles' Bow: Essays on the Rhetoric and Poetics of the Law (1985) [hereinafter White, Herakles' Bow]; James Boyd White, When Words Lose their Meaning: Constitutions and Reconstitutions of Language, Character and Community (1984) [hereinafter White, When Words Lose]; James Boyd White, The Legal Imagination (1973) [hereinafter White, Legal Imagination]; James Boyd White, What Can a Lawyer Learn from Literature?, 102 Harv. L. Rev. 2014 (1989) (reviewing Richard A. Posner, Law and Literature: A Misunderstood Relation (1988)) [hereinafter White, book review]. (3) See, e.g., White, Justice as Translation, supra note 2, at 89-202; White, When Words Lose, Supra note 2, at 247-63. (4) See, e.g., Mary Ann Glendon, Abortion and Divorce IN Western LAW 8-9, 140 (1987); Clark D. Cunningham, The Lawyer as Translator, Representation as Text: towards an Ethnography of Legal Discourse, 77 Cornell L. Rev. 1298 (1992); Clark D. Cunningham, A Tale of Two Clients: Thinking About Law as Language, 87 Mich. L. Rev. 2459, 2483 (1989); Thomas D. Eisele, The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities, 54 Tenn. L. Rev. 345 (1987); Jody Freeman, Constitutive Rhetoric: Law as a Literary Activity, 14 Harv. Women's L.J. 305 (1991). (5) See, e.g., Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (1983); L.H. LaRue, Political Discourse: A Case History of the Watergate Affair (1988); Joseph L. Sax, Mountains Without Handrails: Reflections on the National Parks (1980); Philip Soper: A Theory of Law (1984); Joseph Vining, The Authoritative and the Authoritatian (1986); Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 Mich. L. Rev. 2280 (1989); Teresa Godwin Phelps, The Story of the Law in Huckleberry Finn, 39 Mercer L. Rev. 889 (1988); Joseph William Singer, Persuasion, 87 Mich. L. Rev. 2442 (1989); Peter R. Teachout, Chicago Exposition: The New American Jurisprudential Writing as a Cultural Literature, 39 Mercer L. Rev. 767 (1988); Joseph Vining, Authority and Responsibility: The Jurisprudence of Deference, 43 Admin. L. Rev. 135 (1991); Gerald B. Wetlaufer, Rhetoric and Its Denial in Legal Discourse, 76 VA. L. Rev. 1545 (1990). See also Richard Weisberg, Poethics: and Other Strategies of Law and Literature 16-34, 171 (1992). Weisberg's presence on this list is uncertain, because he can be as easily described as one who draws lessons from interpretative theory about law or as one who looks at the portrayal of the law in Literature, see infra notes 14-15. In addition, Weisberg is highly critical of White's theories and methods, See Weisberg, supra at 224-50. Nevertheless, Weisberg's discussion of rhetoric is so similar to White's that he belongs on this list. Like Emily Fowler Hartigan, I think Weisberg and White have more in common than Weisberg appears ready to admit. Emily Fowler Hartigan, From Righteousness to Beauty: Reflections on Poethics and Justice as Translation, 67 Tul. L. Rev. 455, 464 (1992). (6) 111 S. Ct. 1196 (1991). (7) See, e.g., Court Ruling on Fetal Protection Stuns Both Sides, Atlanta Const., Mar. 21, 1991, at E1; Linda Greenhouse, Court Backs Right of Women to Jobs with Health Risks, N.Y. Times, Mar; 21, 1991, at Al; Ruth Marcus, Justices Find Bias in Fetal Protection," Wash. Post, Mar. 21, 1991, at Al; David Savage, Court Rejects Limiting Jobs to Protect Fetuses, L.A. Times, Mar. 21, 1991, at A1; Jill Smolowe, Weighing Some Heavy Metal, Time, Apr. 1, 1991, at 60; Stephen Wermiel, Justices Bar Fetal Protection" Policies, Wall St. J., Mar 21, 1991, at B1. (8) See, e.g., David L. Kirp, Fetal Hazards, Gender Justice, and the Justices: The Limits of Equality, 34 Wm. & Mary L. Rev. 101 (1992); Gary Minda, Title VII at the Crossroads of Employment Discrimination Law and Postmodern Feminist Theory: United Auto Workers v. Johnson Controls, Inc. and Implications for the Women's Rights Movement, 90 St. Louis U. Pub. L. Rev. 89 (1992); Christine Neylon O'Brien & Margo E.K. Reder, Strategies for Implementing Workplace Reproductive and Health Programs, 19 J. Legis. (forthcoming, 1993); Christine Neylon O'Brien & Margo E.K. Reder, Modeling an Employment Policy to Unify Workers' Rights with Fetal Protection, 24 Ariz. St. L.J. 1149 (1992); Christine N. O'Brien, Margo E.K. Reder, Gerald A. Madek & Gerald R. Ferrera, Employer Fetal Protection Policies at Work: Balancing Reproductive Hazards with Title VII Rights, 74 Marq. L. Rev. 147 (1991); Carol D. Rasnic, Germany's Legal Protection for Women Workers Vis-a-Vis Illegal Employment Discrimination in the United States: A Comparative Perspective in Light of Johnson Controls, 13 Mich. J. Intl. L. 415 (1992); Durwood Ruegger, Fetal Protection Plans After the Johnson Controls Decision, 20 Selected Papers Am. Bus. L. Ass'n. Nat'l Proc. 285 (1991); M. Chris Floyd, Note, Putting the Teeth Back into the BFOQ Requirement of Title VII and the Pregnancy Discrimination Act: International Union v. Johnson Controls, Inc., 26 U. Rich. L. Rev. 413 (1992); Amy H. Moorman, Note, International Union v. Johnson Controls, Inc.: Sex-Specific Fetal Protection Policies of Employers are Prohibited by Title VII as Amended by the Pregnancy Discrimination Act, 94 W. Va. L. Rev. 237 (1991); Louise Van Dyck, Comment, The Costs of Fetal Protection, 23 Conn. L. Rev. 1049 (1991); Eleanor Wallace, Note, Does United Auto Workers v. Johnson Controls Answer the Difficult Questions About Toxic Workplace Hazards?, 22 Envtl. L. 355 (1991). (9) Richard A. Posner, Law and Literature: A Misunderstood Relation 12 (1988); C.R.B. Dunlop, Literature Studies in Law Schools, 3 Cardozo Stud. L. & Literature 63, 63 (1991). See generally Robert A. Ferguson, Law and Letters in American Culture (1984). See White, Herakles' Bow, supra note 2 at x-xii. Many have tried. See, e.g., Posner, supra note 9, at 5-21; Anita A. Allen, The Jurisprudence of Jane Eyre, 15 Harv. Women's L.J. 173, 178-79 (1992); Dunlop, supra note 9, at 63-64; Elizabeth Bowers Gemmette, Law and Literature: An Unnecessarily Suspect Class in the Liberal Arts Component of the Law School Curriculum, 23 Val. U. L. Rev. 267, 284-301 (1989); Carolyn Heilbrun & Judith Resnik, Convergences: Law, Literature and Feminism, 99 Yale L.J. 1913, 1936 (1990); Phillip N. Meyer, Convicts, Criminals, Prisoners & Outlaws: A Course in Popular Storytelling in The Law School Curriculum, 42 J. Legal Educ. 129, 130-31 (1992); Martha Minow, Words and the Door to the Land of Change: Law, Language and Family Violence, 43 Vand. L. Rev. 1665, 1687-88 (1990); Robin L. West, Adjudication Is Not Interpretation: Some Reservations About the Law-As-Literature Movement, 54 Tenn. L. Rev. 203, 203-04 n.1 (1987); Deborah S. Gordon, Note, "|Jug Jug' to Dirty Ears": Maryland v. Craig through a Literary Lens, 66 N.Y.U. L. Rev. 1405-06 (1991); Daniela K. Pacher, Note, Aesthetics vs. Ideology: The Motives Behind "Law and Literature", 14 Colum.-VLA J.L. & Arts 587 (1990). But see White, book review, supra note 2, at 2024-26 (citing with approval over two dozen references, but declining to categorize them); James Boyd White, Law and Literature: "No Manifesto," 39 Mercer L. Rev. 739 (1988). (13) See, e.g., John Denvir, "Deep Dialogue"--James Joyce's Contribution to Am can Constitutional Theory, 3 Cardozo Stud. L. & Literature 1 (1991); Heilbrun & Resnik, supra note 12; Linda R. Hirshman, Bronte, Bloom and Bork: An Essay on the Moral Education of Judges, 137 U. Pa. L. Rev. 177 (1988); David Luban, Some Greek Trials: Order and Justice in Homer, Hesiod, Aeschylus and Plato, 54 Tenn. L. Rev. 279 (1987); Minow, supra note 12; Robin West, Economic Man and Literary Woman: One Contrast, 39 Mercer L. Rev. 867 (1988); Robin West, Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kajka and Richard Posner, 99 Harv. L. Rev. 384 (1985). At least one author has asked the opposite question: "Can Literature learn from law? I believe it can." Allen, supra note 12, at 180. (14) See, e.g., Stanley Fish, Doing What Comes Naturally (1989); Interpreting Law and Literature: A Hermeneutic Reader (Sanford Levinson & Steven Mailloux eds., 1988); Betsy B. Baker, Constructing Justice: Theories of the Subject in Law and Literature, 75 Minn. L. Rev. 581 (1991). (15) See, e.g., Brook Thomas, Cross-Examinations of Law and Literature (1987); Alan D. Boyer, Formalism, Realism and Naturalism: Cross-Currents in American Letters and Law, 23 Conn. L. Rev. 669 (1991); Michael H. Hoffheimer, Artistic Convention and Natural Law: Didactic Treatment of Justice and Authority in the Works of Fielding, Hawthorne, and Fritz Lang, 63 Temp. L. Rev. 483 (1990); Paul Joseph & Sharon Carton, The Law of The Federation: Images of Law, Lawyers and The Legal System in "Star Trek: The Next Generation," 24 U. Tol. L. Rev. 43 (1992). These first three projects are summarized in a rather pithy manner by Philip N. Meyer, who calls them "hermeneutics, hoviletics, [and] ethnography." Meyer, supra note 12, at 130. It is not clear where the works of Derrick Bell, in which be uses narrative as a method of arguing about complex legal and political issues, would belong in this four-pronged matrix. He may be doing all of it at once. See, e.g., Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (1992); Debrick Bell, and We Are Not Saved: The Elusive Quest for Racial Justice (1987).
The various strands of legal-literary scholarship have begun to draw contrary voices. Some critics say that interdisciplinary legal scholarship in general is misguided or abused, see, e.g., Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship, 41 Duke L.J. 191 (1991), while others say that it tempts the lawyer to engage in dilettantish dabbling in fields beyond his expertise. See Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4 Yale J.L. & Human. 79 (1992).
The most prominent skeptic, Richard A. Posner, has examined many of the different routes lawyers have taken to Literature, concluding that Literature has only limited utility for the law, primarily in the area of making lawyers more convincing advocates. Posner, supra note 9, at 359-61. See also Richard A. Posner, Law and Literature: A Relation Reargued, 72 Va. L. Rev. 1351 (1986). But see White, book review, supra note 2; Stanley Fish, Don't Know Much About the Middle Ages: Posner on Law and Literature, in Fish, supra note 14, at 294. One of the ironies of recent years is that certain parts of the legal academy began to take law and Literature seriously only when Posner, who made his reputation applying economics to law, addressed law and Literature in his 1988 book. In examining the articles on la