Torres, Gerald

English

Cornell Law Library

Cornell Law Library
Scholarship@Cornell Law: A Digital Repository
Cornell Law Faculty Publications Faculty Scholarship
Summer 2013
Law and the Creation of Meaning: A Brief
Reflection on the Work of Jane Larson
Gerald Torres
Cornell Law School, gt276@cornell.edu
Follow this and additional works at: http://scholarship.law.cornell.edu/facpub
Part of the Legal History, Theory and Process Commons, and the Women Commons
This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Cornell Law: A Digital Repository. It has been
accepted for inclusion in Cornell Law Faculty Publications by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For
more information, please contact jmp8@cornell.edu.
Recommended Citation
Torres, Gerald, "Law and the Creation of Meaning: A Brief Reflection on the Work of Jane Larson" (2013). Cornell Law Faculty
Publications. Paper 1218.
http://scholarship.law.cornell.edu/facpub/1218
WISCONSIN JOURNAL OF
LAW, GENDER & SOCIETY
VOL. XXVIII, NUMBER 2 SUMMER 2013
PREFACE
LAW AND THE CREATION OF MEANING:
A BRIEF REFLECTION ON THE WORK OF JANE LARSON
Gerald Torres*
I first met Jane when she was my student at the University of Minnesota
and while the purpose of this gathering is not to exchange reminiscences about
Jane, the person, separating her work from who she was would not be faithful
to the work she produced and the impact that it had. I selected the title of this
short piece with some care because while Jane was absolutely committed to the
idea of law as an autonomous academic discipline, neither restrained by strict
doctrinalism nor parasitic on other precincts of the academy, she also
understood that legal scholarship stands at the intersection of reason and power
and there is a special responsibility to be clear about how law functions as an
interlocking set of coercive normative institutions. Thus her work, firmly
rooted in formal legal analysis, was also of a piece with the methodologies and
ambitions of both the social sciences and the humanities.
A quick look at the topics and the methodologies assayed in her work
reveals her range. Prostitution and Human Rights, Rape Reform in Late
Nineteenth Century America, Informality, Illegality, and Inequality, Class,
Economics and Social Rights, Conflict of Laws, the Constitutionality of the
Independent Counsel Statute, Using the FTC Act Precedents in State Consumer
Protection Cases, The Impact of Titling on Low Income Housing in Texas and
these do not exhaust the titles of her works (it leaves out many and does not
include her important book).' Yet if you look at her work what ties it together
* Bryant Smith Chair, University of Texas at Austin
1. See, e.g. Jane E. Larson, New Home Economics, 10 Const. Comment. 443 (1993);
Prostitution, Labor, and Human Rights, 37 U.C. Davis L. Rev. 673 (2003-2004); Imagine
105
106 WISCONSIN JOURNAL OF LAW, GENDER & SOCIETY
was in many ways her commitment to a continuation of the realist project.2
Thus her methodological turn to both the social sciences and to the humanities.
She understood that Critical Legal Studies and Feminist legal inquiry were
elaborations on the idea that law is not an autonomous institution from which
rules issue unsullied by the political, legal, and social culture that produced
them. Neither are judges (much less Justices) resistant to the currents of the
river they swim in. Nonetheless, her commitment, like the realists, was to facts.
She did not believe that judicial decision-making was an exercise in
unconstrained power or the mere exercise of individual preference, but she
wanted to make plain what those constraints might be and how they reflected
the relatively unspecified norms of the institution in question. Doctrine and
legal reasoning as independent methods of analysis or sources of decision may
not be dispositive, but they perform an important translating role between the
situation of the conflict and the rules a judicial actor might access to resolve
that conflict. Understanding the dynamics of the struggle is actually key to
understanding the role that law and legal decision-making might play sorting
out the not just the legitimate use of power, but the crawl spaces where the
powerful might be resisted.
Her Satisfaction: The Transformative Task of Feminist Tort Work, 33 Washburn L.J. 56
(1993-1994); Introduction: Third Wave-Can Feminists Use the Law to Effect Social
Change in the 1990's, 87 Nw. U. L. Rev. 1252 (1992-1993); A Good Story and the Real
Story, 34 J. Marshall L. Rev. 181 (2000-2001); Class, Economics, and Social Rights,54
Rutgers L. Rev. 831 (2001-2002); Free Markets Deep in the Heart of Texas, 84 Geo. L.J.
179 (1995-1996); Sexual Injustice of the Traditional Family, 77 Cornell L. Rev. 997 (1991-
1992); Women Understand So Little, They Call My Good Nature Deceit: A Feminist
Rethinking of Seduction, 93 Colum. L. Rev. 374 (1993); Even a Worm Will Turn at Last:
Rape Reform in Late Nineteenth-Century America, 9 Yale J.L. & Human. 1 (1997); A House
Divided Using Dred Scott to Teach Conflict of Laws, 27 U. Tol. L. Rev. 577 (1995-1996);
The Constitutionality of the Independent Counsel Statute, 25 Am. Crim. L. Rev. 187 (1987-
1988); Sexual Labor and Human Rights, 37 Colum. Hum. Rts. L. Rev. 391 (2005-2006)
(with Berta E. Hernandez-Truyol); Feminism in Relation, 17 Wis. Women's L.J. 1 (2002)
(with Catherine Albiston and Tonya Brito); Using FTC Act Precedents In State Consumer
Protection Cases, 3 Antitrust 24 (1988-1989) (with Lawrence R. Fullerton) ; El Titulo en la
Mano: The Impact of Titling Programs on Low-Income Housing in Texas Colonias, 36 Law
& Soc. Inquiry, (2011) (with Peer M. Ward, Flavio de Souza, and Cecilia Giusti); HARD
BARGAINS: THE POLITICS OF SEX (with Linda Hirshman) (1998).
2. See, Jane E. Larson, Is It Time for a New Legal Realism? (with Howard Erlanger,
Bryant Garth, Elizabeth, Mertz, Victoria Nourse, and David Wilkins) 2005 Wisc. L. Rev.
335 (2005). The "realist project" is difficult to define in any absolute sense because of all of
the competing claims to its core concepts. Moreover, there have been many vulgar
characterizations of what the realists were up to and whether they were systematic theorists
at all. Suffice to say for the purposes of this essay and for understanding Jane's work, the
realist project was essentially a methodological program that sought to identify and describe
the patterns of judicial decisions and to use insights and methods of the social sciences to
accomplish that task. In addition, realists understood that courts, while couching their
opinions in the language of doctrinal categories often "enforce the prevailing, uncodified
norms as they would apply to the underlying factual situation." See BRIAN LEITER,
NATURALIZING JURISPRUDENCE, 61-65 (2007). Of course, I have added here that the divide
between the humanities and the social sciences is not so neat as the ordinary categories
would suggest and that separation is particularly troubling in the context of law because of
its position as a mediator between or justifier of coercive normative institutions.
[Vol. 28:2
PREFA CE
Her renovation of legal realism moved beyond the critique of classical
legal thought or classical legal liberalism, but she did not toss formalism as a
method onto the trash heap. She knew that unreflective judicial law-making
relied on formal arguments and doctrinal extension to a degree that the inability
to master these techniques of lawyering was to stand disarmed in the face of
power.3 Without denying the ways in which moral, political, social, and
economic conflict constructed law, she understood that the mythology of law
was a powerful force in itself. Thus she saw the engagement with history as a
critical step in providing the necessary distance between the critics of the law
and the objects of legal rules. History put the operation of law in context. It also
provided a comparative foundation for understanding the situation of current
legal disputes. Without ever falling prey to presentism, her recourse to history
was a technique for recapturing facts that would permit us to understand the
nature of the legal and social problems we were confronting as well as the
nature of the illusions about the law we had to both reveal and manage.
As with her most important teachers, she understood that to endeavor to
reclaim the discourse of lived reality she would have to fashion legal arguments
that could take that reclaimed discourse and turn it into a weapon that courts
and other legal actors would have to confront and take seriously.4 The
institutions of law are just one means of social control, but the place that legal
discourse occupies in our culture means that it would always be a place where
the macro struggles of our time would be refracted into almost denatured
categories. She knew there is no place free from the play of politics, but that
law, legal reasoning, and legal argumentation were a particular kind of politics
and that failing to appreciate the semi-autonomous nature of legal institutions
and the formalism of legal analytic and argumentative forms would be to
misunderstand law. But while she understood the instrumental qualities of law
and legal analysis she also knew that law was not limited to its instrumental
purposes or techniques. Law, in short, was about power, and hegemony
required that raw power be converted into meaning.
The idea of hegemony as a description of how law functions to maintain
specific kinds of social control without requiring the constant imposition of
brute power animates much of her work. Her most trenchant critiques involved
demonstrating how the mask of consent was merely the normalized relations of
class, race and gender. Yet, her critique, rooted as it was in the law, never
slipped into the kind of easy structural analysis that yields thin and unsatisfying
conclusions. Instead, her conception of culture and its role in perpetuating and
justifying social relations was sensitive and nuanced and thus produced a rich
description of the impact of legal changes as well as the impact of the law
before it was enlisted in the struggle to produce change. The social life of the
colonias would not be dramatically changed by titling the occupants of the land
3. Frederick Schauer, Formalism, 97 Yale. L. J. 509 (1988). See also FREDERICK
SCHAUER, THINKING LIKE A LAWYER: A NEW INTRODUCTION To LEGAL REASONING (2009).
4. Gerald Torres, Sex Lex: Creating A Discourse, 46 Tulsa L. Rev. 101 (2012); Torres
and Milun, Translating Yonnondio by Precedent and Evidence: The Mashpee Indian Case,
1990 Duke L. J. 625 (1990).
2013]1 107
108 WISCONSIN JOURNAL OF LAW, GENDER & SOCIETY
purchased on contract, but it would provide an additional tool to rebalance the
power along the border. The formal change could provide an asset that could be
enlisted in the struggle between potential landowners and the developers who
would use their dreams of home ownership against the colonia residents. She
could apply the analysis of de Soto and assess its impact across a variety of
institutions. Would it change the way credit functioned in the Rio Grande
valley? Would it change the nature of civic engagement? Her inquiries were
empirical and deeply theoretical, exactly what we want legal scholarship to be.
Rather than take the empirical work of people like de Soto and make an
ideological argument, she said, "Let's look." When I suggested that part of her
project was to renovate the realist critique, her work in the colonias was a
cardinal example of that project. But it was not the only one.
Her commitment to changing the discourse of gender inequality was not
limited to the historical work she did, although it was in the service of that
project. Instead it was rooted in the idea that you had to take the lived
experience of women as the starting point for re-crafting how issues of gender
are understood. This is evident in the briefs she helped write as well as in the
historical work she did. Her essay on the tort of seduction6 illustrates this in an
exemplary fashion. She had to understand and explicate not only the specific
tort, but the doctrinal structure of tort remedies and it was in the careful
dissection of the doctrine and with it a careful examination of the social
meaning of the claimed harm that the assault on the dominant discourse of
gender relations was most acute.7 That essay was a model of scholarly care and
carefully grounded social critique. When the idea of creating a new legal
discourse of gender is understood as such it is work like this essay that will be
the wellspring of that development as much as any deeply abstract
philosophical inquiry, as important as such inquiries might be.
Her work on prostitution is bracing because it calls to account in a lucid
and cool way those who would try and redefine labor, consent, and freedom.
She does this using the tools of law, history, and social theory. She points out
the under-theorized accounts of labor that are elided in the consideration and
criticism when the specific labor is sexual labor. By demonstrating that the
liberal account of slavery and gender essentially prevents the full appreciation
of the social relations of labor she is not just updating Marxism, she is saying
that the insight that Marx applied to labor is distorted when pushed through a
liberal legal sieve. This telling does not turn away from the realities of sexual
labor, but asks hard questions about the nature of "free labor" and the
conditions under which it is regulated. She exposes the contradictions in the
very nature of the regulations themselves by demonstrating that they cannot
usefully comprehend the labor conditions that exist in the world and that their
approach to prostitution is merely the most pronounced example.
5. Hernando de Soto, The Mysteries of Capital (2000).
6. Jane E. Larson, Women Understand So Little, They Call My Good Nature Deceit: A
Feminist Rethinking ofSeduction, 93 Colum. L. Rev. 374 (1993).
7. This was in many ways exactly like the realist situational critique of tort doctrine.
[Vol. 28:2
PREFA CE
Yet, as I reflect on her work I am reminded of her courage. I hope you will
indulge this little aside. The best work is always the result of hard work and a
powerful intellect, but one aspect of both of those attributes is often
overlooked, and it is the thing that makes all the difference: courage. Of
course, intellectual courage is a prerequisite to honest inquiry, but with Jane,
her courage was evident not just in her work, but in her actions. When the
Minneapolis anti-pomography ordinance proposed by Professor Catharine
MacKinnon was taking shape, the opposition to the effort was not restricted to
reasoned disagreement. Beyond the attempts to lampoon the ordinance by
casting it as censorship rather than as a remedial measure to compensate those
who had been harmed by pornography, there were real physical threats to
supporters of the ordinance. Jane was one of those people whose reasoned
opposition to pornography carried with it real physical jeopardy. Her steadfast
work not only revealed the strength of her intellectual commitment, but her
refusal to be intimidated. While I have no evidence of the hardships she faced
in the colonias of south Texas, I am sure that those grandees who could see
their power being challenged were not well pleased either. Her activism was
rooted in a detailed understanding of the law and the social conditions under
which it was operating. As the civil rights and feminist struggles have
demonstrated, the redemptive or liberatory potential in making the law do what
it says is often overlooked, but it takes a critical analyst to unlock that potential.
This is intellectual work with a bite and was an expression of her intellectual
honesty that she did not shrink from any pressure her analysis produced.
I could review all of her work and it would reveal the same virtues I have
outlined here. This is not to say that her work was not worthy of critique itself,
but importantly, it was generative. The mark of any important work is often not
so much in the work itself, but in the other work it generates. It may be critical
work or it may be work extending the lines of inquiry, but that it produces a
scholarly reaction (and a conversion of the scholarly inquiries into action) is the
true mark of any work's staying power. Her analysis of the legal and social
dynamics in the colonias was especially important as gauged by this metric. It
generated additional legal and cross-disciplinary work.
It is often said that one of the benefits of good scholarship is that it
informs teaching by making insights deeper. More than that, however, in the
case of Jane's work, it created a capacity to imagine herself into the lives of
others. That empathic capacity combined with her deep knowledge of her
subjects made her an exemplary teacher as was evidenced by the regard with
which her students' held her. Teaching cannot be separated from the task of
scholarship, especially if the scholar is open to the questions of her students.
This openness is evidence of a mind that, while searching and methodologically
disciplined, is not disposed to treat the untutored inquiry as beside the point.
Instead, the capacity to communicate to an audience that is not composed just
of peers in a way that respects both the subject and the inquisitor is also the
mark of a mature and self-confident scholar.
I said that I did not choose the title to this brief essay lightly and that is
true. I believe that the law is as much a part of the humanities as it is part of the
social sciences. It is parasitic on neither yet it occupies a kind of middle
2013] 109
110 WISCONSIN JOURNAL OF LA W, GENDER & SOCIETY [Vol. 28:2
ground. Because of the various ways it both expresses and mediates social and
state power, it is a central institution in creating the consciousness of our social
position. That consciousness is where meaning lies and scholars who scour the
edges of it expose the mask of consent that justifies public and private power.
Jane held those justifications up and thrust them into the light where we could
all see them.


Law and the Creation of Meaning: A Brief Reflection on the Work of Jane Larson

Scholarship @ Cornell Law

Cornell Law LibraryScholarship@Cornell Law: A Digital RepositoryCornell Law Faculty Publications Faculty ScholarshipSummer 2013Law and the Creation of Meaning: A BriefReflection on the Work of Jane LarsonGerald TorresCornell Law School, gt276@cornell.eduFollow this and additional works at: http://scholarship.law.cornell.edu/facpubPart of the Legal History, Theory and Process Commons, and the Women CommonsThis Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Cornell Law: A Digital Repository. It has beenaccepted for inclusion in Cornell Law Faculty Publications by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. Formore information, please contact jmp8@cornell.edu.Recommended CitationTorres, Gerald, "Law and the Creation of Meaning: A Brief Reflection on the Work of Jane Larson" (2013). Cornell Law FacultyPublications. Paper 1218.http://scholarship.law.cornell.edu/facpub/1218WISCONSIN JOURNAL OFLAW, GENDER & SOCIETYVOL. XXVIII, NUMBER 2 SUMMER 2013PREFACELAW AND THE CREATION OF MEANING:A BRIEF REFLECTION ON THE WORK OF JANE LARSONGerald Torres*I first met Jane when she was my student at the University of Minnesotaand while the purpose of this gathering is not to exchange reminiscences aboutJane, the person, separating her work from who she was would not be faithfulto the work she produced and the impact that it had. I selected the title of thisshort piece with some care because while Jane was absolutely committed to theidea of law as an autonomous academic discipline, neither restrained by strictdoctrinalism nor parasitic on other precincts of the academy, she alsounderstood that legal scholarship stands at the intersection of reason and powerand there is a special responsibility to be clear about how law functions as aninterlocking set of coercive normative institutions. Thus her work, firmlyrooted in formal legal analysis, was also of a piece with the methodologies andambitions of both the social sciences and the humanities.A quick look at the topics and the methodologies assayed in her workreveals her range. Prostitution and Human Rights, Rape Reform in LateNineteenth Century America, Informality, Illegality, and Inequality, Class,Economics and Social Rights, Conflict of Laws, the Constitutionality of theIndependent Counsel Statute, Using the FTC Act Precedents in State ConsumerProtection Cases, The Impact of Titling on Low Income Housing in Texas andthese do not exhaust the titles of her works (it leaves out many and does notinclude her important book).' Yet if you look at her work what ties it together* Bryant Smith Chair, University of Texas at Austin1. See, e.g. Jane E. Larson, New Home Economics, 10 Const. Comment. 443 (1993);Prostitution, Labor, and Human Rights, 37 U.C. Davis L. Rev. 673 (2003-2004); Imagine105106 WISCONSIN JOURNAL OF LAW, GENDER & SOCIETYwas in many ways her commitment to a continuation of the realist project.2Thus her methodological turn to both the social sciences and to the humanities.She understood that Critical Legal Studies and Feminist legal inquiry wereelaborations on the idea that law is not an autonomous institution from whichrules issue unsullied by the political, legal, and social culture that producedthem. Neither are judges (much less Justices) resistant to the currents of theriver they swim in. Nonetheless, her commitment, like the realists, was to facts.She did not believe that judicial decision-making was an exercise inunconstrained power or the mere exercise of individual preference, but shewanted to make plain what those constraints might be and how they reflectedthe relatively unspecified norms of the institution in question. Doctrine andlegal reasoning as independent methods of analysis or sources of decision maynot be dispositive, but they perform an important translating role between thesituation of the conflict and the rules a judicial actor might access to resolvethat conflict. Understanding the dynamics of the struggle is actually key tounderstanding the role that law and legal decision-making might play sortingout the not just the legitimate use of power, but the crawl spaces where thepowerful might be resisted.Her Satisfaction: The Transformative Task of Feminist Tort Work, 33 Washburn L.J. 56(1993-1994); Introduction: Third Wave-Can Feminists Use the Law to Effect SocialChange in the 1990's, 87 Nw. U. L. Rev. 1252 (1992-1993); A Good Story and the RealStory, 34 J. Marshall L. Rev. 181 (2000-2001); Class, Economics, and Social Rights,54Rutgers L. Rev. 831 (2001-2002); Free Markets Deep in the Heart of Texas, 84 Geo. L.J.179 (1995-1996); Sexual Injustice of the Traditional Family, 77 Cornell L. Rev. 997 (1991-1992); Women Understand So Little, They Call My Good Nature Deceit: A FeministRethinking of Seduction, 93 Colum. L. Rev. 374 (1993); Even a Worm Will Turn at Last:Rape Reform in Late Nineteenth-Century America, 9 Yale J.L. & Human. 1 (1997); A HouseDivided Using Dred Scott to Teach Conflict of Laws, 27 U. Tol. L. Rev. 577 (1995-1996);The Constitutionality of the Independent Counsel Statute, 25 Am. Crim. L. Rev. 187 (1987-1988); Sexual Labor and Human Rights, 37 Colum. Hum. Rts. L. Rev. 391 (2005-2006)(with Berta E. Hernandez-Truyol); Feminism in Relation, 17 Wis. Women's L.J. 1 (2002)(with Catherine Albiston and Tonya Brito); Using FTC Act Precedents In State ConsumerProtection Cases, 3 Antitrust 24 (1988-1989) (with Lawrence R. Fullerton) ; El Titulo en laMano: The Impact of Titling Programs on Low-Income Housing in Texas Colonias, 36 Law& Soc. Inquiry, (2011) (with Peer M. Ward, Flavio de Souza, and Cecilia Giusti); HARDBARGAINS: THE POLITICS OF SEX (with Linda Hirshman) (1998).2. See, Jane E. Larson, Is It Time for a New Legal Realism? (with Howard Erlanger,Bryant Garth, Elizabeth, Mertz, Victoria Nourse, and David Wilkins) 2005 Wisc. L. Rev.335 (2005). The "realist project" is difficult to define in any absolute sense because of all ofthe competing claims to its core concepts. Moreover, there have been many vulgarcharacterizations of what the realists were up to and whether they were systematic theoristsat all. Suffice to say for the purposes of this essay and for understanding Jane's work, therealist project was essentially a methodological program that sought to identify and describethe patterns of judicial decisions and to use insights and methods of the social sciences toaccomplish that task. In addition, realists understood that courts, while couching theiropinions in the language of doctrinal categories often "enforce the prevailing, uncodifiednorms as they would apply to the underlying factual situation." See BRIAN LEITER,NATURALIZING JURISPRUDENCE, 61-65 (2007). Of course, I have added here that the dividebetween the humanities and the social sciences is not so neat as the ordinary categorieswould suggest and that separation is particularly troubling in the context of law because ofits position as a mediator between or justifier of coercive normative institutions.[Vol. 28:2PREFA CEHer renovation of legal realism moved beyond the critique of classicallegal thought or classical legal liberalism, but she did not toss formalism as amethod onto the trash heap. She knew that unreflective judicial law-makingrelied on formal arguments and doctrinal extension to a degree that the inabilityto master these techniques of lawyering was to stand disarmed in the face ofpower.3 Without denying the ways in which moral, political, social, andeconomic conflict constructed law, she understood that the mythology of lawwas a powerful force in itself. Thus she saw the engagement with history as acritical step in providing the necessary distance between the critics of the lawand the objects of legal rules. History put the operation of law in context. It alsoprovided a comparative foundation for understanding the situation of currentlegal disputes. Without ever falling prey to presentism, her recourse to historywas a technique for recapturing facts that would permit us to understand thenature of the legal and social problems we were confronting as well as thenature of the illusions about the law we had to both reveal and manage.As with her most important teachers, she understood that to endeavor toreclaim the discourse of lived reality she would have to fashion legal argumentsthat could take that reclaimed discourse and turn it into a weapon that courtsand other legal actors would have to confront and take seriously.4 Theinstitutions of law are just one means of social control, but the place that legaldiscourse occupies in our culture means that it would always be a place wherethe macro struggles of our time would be refracted into almost denaturedcategories. She knew there is no place free from the play of politics, but thatlaw, legal reasoning, and legal argumentation were a particular kind of politicsand that failing to appreciate the semi-autonomous nature of legal institutionsand the formalism of legal analytic and argumentative forms would be tomisunderstand law. But while she understood the instrumental qualities of lawand legal analysis she also knew that law was not limited to its instrumentalpurposes or techniques. Law, in short, was about power, and hegemonyrequired that raw power be converted into meaning.The idea of hegemony as a description of how law functions to maintainspecific kinds of social control without requiring the constant imposition ofbrute power animates much of her work. Her most trenchant critiques involveddemonstrating how the mask of consent was merely the normalized relations ofclass, race and gender. Yet, her critique, rooted as it was in the law, neverslipped into the kind of easy structural analysis that yields thin and unsatisfyingconclusions. Instead, her conception of culture and its role in perpetuating andjustifying social relations was sensitive and nuanced and thus produced a richdescription of the impact of legal changes as well as the impact of the lawbefore it was enlisted in the struggle to produce change. The social life of thecolonias would not be dramatically changed by titling the occupants of the land3. Frederick Schauer, Formalism, 97 Yale. L. J. 509 (1988). See also FREDERICKSCHAUER, THINKING LIKE A LAWYER: A NEW INTRODUCTION To LEGAL REASONING (2009).4. Gerald Torres, Sex Lex: Creating A Discourse, 46 Tulsa L. Rev. 101 (2012); Torresand Milun, Translating Yonnondio by Precedent and Evidence: The Mashpee Indian Case,1990 Duke L. J. 625 (1990).2013]1 107108 WISCONSIN JOURNAL OF LAW, GENDER & SOCIETYpurchased on contract, but it would provide an additional tool to rebalance thepower along the border. The formal change could provide an asset that could beenlisted in the struggle between potential landowners and the developers whowould use their dreams of home ownership against the colonia residents. Shecould apply the analysis of de Soto and assess its impact across a variety ofinstitutions. Would it change the way credit functioned in the Rio Grandevalley? Would it change the nature of civic engagement? Her inquiries wereempirical and deeply theoretical, exactly what we want legal scholarship to be.Rather than take the empirical work of people like de Soto and make anideological argument, she said, "Let's look." When I suggested that part of herproject was to renovate the realist critique, her work in the colonias was acardinal example of that project. But it was not the only one.Her commitment to changing the discourse of gender inequality was notlimited to the historical work she did, although it was in the service of thatproject. Instead it was rooted in the idea that you had to take the livedexperience of women as the starting point for re-crafting how issues of genderare understood. This is evident in the briefs she helped write as well as in thehistorical work she did. Her essay on the tort of seduction6 illustrates this in anexemplary fashion. She had to understand and explicate not only the specifictort, but the doctrinal structure of tort remedies and it was in the carefuldissection of the doctrine and with it a careful examination of the socialmeaning of the claimed harm that the assault on the dominant discourse ofgender relations was most acute.7 That essay was a model of scholarly care andcarefully grounded social critique. When the idea of creating a new legaldiscourse of gender is understood as such it is work like this essay that will bethe wellspring of that development as much as any deeply abstractphilosophical inquiry, as important as such inquiries might be.Her work on prostitution is bracing because it calls to account in a lucidand cool way those who would try and redefine labor, consent, and freedom.She does this using the tools of law, history, and social theory. She points outthe under-theorized accounts of labor that are elided in the consideration andcriticism when the specific labor is sexual labor. By demonstrating that theliberal account of slavery and gender essentially prevents the full appreciationof the social relations of labor she is not just updating Marxism, she is sayingthat the insight that Marx applied to labor is distorted when pushed through aliberal legal sieve. This telling does not turn away from the realities of sexuallabor, but asks hard questions about the nature of "free labor" and theconditions under which it is regulated. She exposes the contradictions in thevery nature of the regulations themselves by demonstrating that they cannotusefully comprehend the labor conditions that exist in the world and that theirapproach to prostitution is merely the most pronounced example.5. Hernando de Soto, The Mysteries of Capital (2000).6. Jane E. Larson, Women Understand So Little, They Call My Good Nature Deceit: AFeminist Rethinking ofSeduction, 93 Colum. L. Rev. 374 (1993).7. This was in many ways exactly like the realist situational critique of tort doctrine.[Vol. 28:2PREFA CEYet, as I reflect on her work I am reminded of her courage. I hope you willindulge this little aside. The best work is always the result of hard work and apowerful intellect, but one aspect of both of those attributes is oftenoverlooked, and it is the thing that makes all the difference: courage. Ofcourse, intellectual courage is a prerequisite to honest inquiry, but with Jane,her courage was evident not just in her work, but in her actions. When theMinneapolis anti-pomography ordinance proposed by Professor CatharineMacKinnon was taking shape, the opposition to the effort was not restricted toreasoned disagreement. Beyond the attempts to lampoon the ordinance bycasting it as censorship rather than as a remedial measure to compensate thosewho had been harmed by pornography, there were real physical threats tosupporters of the ordinance. Jane was one of those people whose reasonedopposition to pornography carried with it real physical jeopardy. Her steadfastwork not only revealed the strength of her intellectual commitment, but herrefusal to be intimidated. While I have no evidence of the hardships she facedin the colonias of south Texas, I am sure that those grandees who could seetheir power being challenged were not well pleased either. Her activism wasrooted in a detailed understanding of the law and the social conditions underwhich it was operating. As the civil rights and feminist struggles havedemonstrated, the redemptive or liberatory potential in making the law do whatit says is often overlooked, but it takes a critical analyst to unlock that potential.This is intellectual work with a bite and was an expression of her intellectualhonesty that she did not shrink from any pressure her analysis produced.I could review all of her work and it would reveal the same virtues I haveoutlined here. This is not to say that her work was not worthy of critique itself,but importantly, it was generative. The mark of any important work is often notso much in the work itself, but in the other work it generates. It may be criticalwork or it may be work extending the lines of inquiry, but that it produces ascholarly reaction (and a conversion of the scholarly inquiries into action) is thetrue mark of any work's staying power. Her analysis of the legal and socialdynamics in the colonias was especially important as gauged by this metric. Itgenerated additional legal and cross-disciplinary work.It is often said that one of the benefits of good scholarship is that itinforms teaching by making insights deeper. More than that, however, in thecase of Jane's work, it created a capacity to imagine herself into the lives ofothers. That empathic capacity combined with her deep knowledge of hersubjects made her an exemplary teacher as was evidenced by the regard withwhich her students' held her. Teaching cannot be separated from the task ofscholarship, especially if the scholar is open to the questions of her students.This openness is evidence of a mind that, while searching and methodologicallydisciplined, is not disposed to treat the untutored inquiry as beside the point.Instead, the capacity to communicate to an audience that is not composed justof peers in a way that respects both the subject and the inquisitor is also themark of a mature and self-confident scholar.I said that I did not choose the title to this brief essay lightly and that istrue. I believe that the law is as much a part of the humanities as it is part of thesocial sciences. It is parasitic on neither yet it occupies a kind of middle2013] 109110 WISCONSIN JOURNAL OF LA W, GENDER & SOCIETY [Vol. 28:2ground. Because of the various ways it both expresses and mediates social andstate power, it is a central institution in creating the consciousness of our socialposition. That consciousness is where meaning lies and scholars who scour theedges of it expose the mask of consent that justifies public and private power.Jane held those justifications up and thrust them into the light where we couldall see them.

bepress Legal Repository

https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2503&amp;context=facpub

Law and the Creation of Meaning: A Brief Reflection on the Work of Jane Larson

Abstract

Similar works

Full text

Available Versions

Cornell Law Library

Scholarship @ Cornell Law

bepress Legal Repository