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A language game approach to narrative analysis of sexual harassment law in 'Meritor v. Vinson.'

This paper's purpose is to apply narrative analysis to the law to construct a reading that accounts for the different voices that speak, both in terms of the themes they give voice to (possess) and those they close off (interdict). Using a language game approach to examine narrative structures and themes in one legal case (Meritor Savings Bank v. Vinson, 1986-477 U.S. 57), it raises two critical questions: whether a judicial opinion sufficiently accounts for the variety of different voices that speak in law or whether it represents an arbitrary, interested, hegemonic act asserting a non-representative system of unequal law. Part I of the paper will develop an understanding of language game theory(1) (focusing on the work of Jean Francois Lyotard) as a framework for narrative analysis. Part II will engage narrative construction and language game theory in terms of Meritor v. Vinson through three briefs presented before the Supreme Court and the majority opinion rendered in that case. In this analysis, the law is regarded as a temporary contract, what could be referred to as an unstable stability. Indeed, each perspective within the legal community is regarded as part of a conversation (a process) rather than a definitive decision (end product), that is, neither universal nor consistent but various and in flux (White, 1990). This approach assumes the ideal of an on-going conversation of diverse voices engaging in antagonistic discourse to achieve a temporary narrative construction open to continuing conversation.

The usefulness of such an approach lies in its ability to serve as a source for emerging law capable of breaking the stalemate or dead end that inevitably arises at any moment when a dominant perspective ceases adequately to answer the questions put to it (see Kuhn, 1970). Such an approach asks not what are the means of resolving meaning, of plotting, smoothing, or limiting it, but what are the alternatives open to extend limits, to press against, or even to break through, the outside of the envelope in which the legal dialectic takes place. If arriving at a foregrounded singular figure of meaning constitutes the force of dominant means of construction, then bringing forth the multiplicity of background voices that reside in the larger narrative community constitutes the power of this pluralizing perspective.

A law that respects difference and rejects preference for a single dominant perspective asks what options are open in constructing the narratives that constitute judicial opinions. Autonomy-producing rather than disciplinary and falsely consistent, it suggests a spontaneous order emerging out of "conversing" if not "converging" ideas, a momentary stillness at the center of flux. Such law sponsers a perspective that refuses to privilege any of the diverse voices it hears. At the same time, it acknowledges the dangers of a false neutrality that accepts the present order as "natural" and that denies both the de facto priority of the present order and forms of distributive justice that express hierarchical power in a different guise.


Language Game Analysis

If Lyotard is right that "the political only begins at the point where determinant grounds for judgment are withdrawn" (Readings 105), then it is indeterminant judgment (judgment for which there are no frames for understanding, no criteria, no single set of norms, objectives, or outcomes) that forms the best possible deal for developing politics,(2) in our case a transformational law capable of addressing the need for voicing the unvoiced. The reality, of course, is that there is no unpositioned place for understanding, which leads us to playing a game of "what if" this or that approach to an event, a game of learning how to understand even as we invent our understanding as we go along.

Lyotard posits for us his own understanding of culture, and within that culture law (in The Differend, The Postmodern Condition, Just Gaming, and Peregrinations), as a field of heterogeneous games, little stories or narratives (petit recits) each with its own reality as a pragmatic position from which players make "paralogical" moves (inventions that disrupt the frame or field in which one operates). Justice by this concept means resisting the imposition of the rules of other games as metanarratives. Judging thus takes place case by case(3) and indeterminatively, that is, without criteria that privilege one game over another.

Lyotard draws a distinction between justice and truth that considers the former prescriptive (what should be) and the latter descriptive (what is) (see Altieri 63; Readings 108); as such, they are incommensurate and cannot be conflated. Conflation of the two realms is, however, just what a "totalitarian" game does, imposing itself as a metanarrative, deriving a prescriptive (for "colonized" games) from a descriptive (the rules for its own game) (Lyotard, The Differend 142), and thereby presenting law as a "representable reality" (Readings 112) whose norms are those of one language game (169 n.24).(4) For Lyotard, justice does not arise from that which is true or false, since it is not descriptive (48); it does arise from that which is just or unjust. Moreover, it is multiply prescriptive, that is, in multiple individual games, and thereby heterogeneous. As a prescriptive (and therefore not a "representable reality"), justice is not a site of determinate judgment, but can only operate indeterminatively and (because it is heterogeneous) on a case-by-case basis.

Meant to present us with the way to avoid recourse to terrorism and metanarrative, Lyotard's approach operates through experiments "in search of an indeterminate law" (Readings 110). This law is law always in the future and yet to be determined; that is, it remains open to a discussion that is heteroglossic (Bakhtin), leading to a continuously negotiated order whose justness has yet to be determined.(5) Because the idea of justice can exist only in the future, it can only guide as a kind of horizon. "But then the question is: What is it that such a horizon allows us to discern?" (Lyotard and Thebaud 83). To this question, Lyotard holds, there can be no answer, for to answer it one must reverse the flow of time: "What allows us to decide is not that which has been attained, but that which remains to be attained; it is ahead of us, like an Idea." Thus, to judge requires us to behave "as if" time, as a prescriptive, could flow backwards, when, as a descriptive, it flows in the reverse direction. The use of justice as a model can only, as a result, remain paradoxical, that is, a project in resolving the unresolvable. In this sense, Lyotard has created a paradox of "indeterminate determinacy," an arbitrary intervention if we assume rational criteria.

Lyotard's basic model raises several problems, not least among them the precariousness of its notion of consensus. He resists the notion of a social consensus (what he calls a sensus communis), holding that "[t]he network formed by all these phrases, for which no common code exists, becomes more fragile in proportion to its increasing complexity. It seems to me that the only consensus we ought to be worrying about is one that would encourage this heterogeneity or 'dissensus'" (Peregrinations 44). Indeed, consensus suggests for Lyotard a "community of hostages" (38) which, as a means of validating judgments, must continually "be in the process of doing and undoing itself." As a path to achieving universality of judgment, self-determination by a social body that allows or legitimates a given determination of law must thereby be disallowed. In Lyotard's terms, if the law is what the people agree upon, we have said no more than that the law is law because the people want the law, a self-confiming totalitarian language game.

The second problem is that the absence of a representable law presents us with the presence of an unknowable law, disallowing determinate judgments and leaving us to achieve indeterminate law within indeterminative justice. Given the incommensurateness of the language games Lyotard posits and his notion of judgment without criteria, a sufficient universalizing force cannot be achieved. But can one decide between or among language games? And if so, how? Are we merely seeking order because disorder is intolerable, or are choices really only temporary, an entropic form of micro-management to prevent the system from imploding (metanarratives having been discounted as totalitarian)?

In response to such criticisms, Lyotard generates a transcendent end to override the lack of universal authority, that is, to replace the "rationality" of a single master version. What replaces consensus in his view is the "pagan" notion of judging without criteria (or reflective judgment), a form of transcendence that allows a synthesis of data without determinant judgment or a preestablished rule, without external finality (Lyotard and Thebaud 16-18; Peregrinations 8, 20-27). The prescriptions thus presented are not grounded in what "is" nor in the "always known" of tradition; that is, they cannot be received and there is no "conceivable model that must be respected" (Lyotard and Thebaud 18). Moreover, judgment itself can be known only through just judgments and does not flow from any necessary model of goodness. Without a representation of what justice is, Lyotard concludes it must be an empty transcendence, a contentless prescription (Lyotard and Thebaud 26, 69).

He finds such a prescription in the idea of various stories whose multiplicity itself supplies the effect of a prescriptive "ought." But, as Altieri claims (69-70), the regulatory power that derives from this idea must be capable of limiting the force any single language game can exert and of establishing the conditions for coordinating or negotiating differences among games. Without such limits or coordinating principles, justice must remain a justice of multiplicity, that is, the singular justices of each game. Indeed, Altieri does not go far enough, for, if we follow Antonio Gramsci, neither is any game in itself a totally homogeneous "bloc" (indeed, no party to any language game is "merely" a member of that game in the same sense that one is not "merely" a woman, or a Protestant, or a black), so that the same problem in defining justice that exists at the macro level exists at the micro level as well. How are we to arrive at an agreement about justice within each of the discrete language games? Justice at both levels remains a floating notion as long as we refuse all determinants. How then will we know it when we see it, by what criteria, with what legitimacy, and at what level of generality? With no claim to collective judgment, how can we address the question of distributive justice other than to say that we have avoided the injustice of narrative terrorism? Altieri's point is well taken: "using terror as one's contrastive principle blinds us to the fact that in most cases problems of justice are less questions of imposing one incompatible ideology on another than of resolving different emphases within overall principles that the agents do or can share, at least provisionally" (71).

Locating in Lyotard's scheme first a multiplicity of justices and then a justice of multiplicity, such that "singularity is respected in its irreducible multiplicity" ("Afterword," in Lyotard and Thebaud 102), Sam Weber understands the Lyotardian paradox as one in which a singular justice imposes its rule so that individual games can retain theirs; that is, a universal prescriptive ensures multiple descriptives that are themselves singular in terms of the justice they assert on their own home grounds. The possibility that could be missed here is that given the heterogeneity expressed within each language game (Weber certainly finds "otherness" not only between games but within those that are supposed to be "self-identical," 106) as well as the shared elements among games (here we can cite the leaping from game to game, the variants within a game, and the shared members between games), games are not singular within themselves while they remain multiple as a totality. Rather, they are mixed, suggesting that differences are already protected by the sharing that goes on, there is more mutual interest than Lyotard lets on, and an overriding transcendent and paradoxical justice need not be posed. Indeed, implicit in networking among games are principles of mutuality as well as difference sufficient to allow for the emergence of temporary and momentary consensus based upon overlapping interests from within the games themselves. Games already from the beginning infiltrate each other more on the principle of Lyotardian "violence" (within games) than "terror" (between games),(6) a type of mixing that leads to new games by combinations other than the mere cloning that a singular "identified" (in the sense of representing a unity) individual game might produce. Whereas language games in Lyotard's vision should be regulated so they do not eliminate other games, there is little consideration that games depend upon each other both for their definition and for the enrichment that ensures they will not stagnate through self-identification. A game that is entirely localized and incommensurable as a singular entity loses the ability to engage in the back and forth between itself and multiple other games as well as to maintain "a certain tension between unity and disunity" (Weber 113) and thereby loses its ability to capitalize on the fruitful ambivalence that would liberate it from a fixed position.

Within Lyotard's notion of a plurality of justices, there is, nevertheless, a recognition that each game receives statements and judges them in accord with the rules of that game, "working at the limits of what the rules permit in order to invent new moves, perhaps new rules and therefore new games" (Lyotard and Thebaud 100). Formal rules (determinative) and imaginative moves (indeterminative) constitute the nature of the justice of the singular games, a violence that Lyotard accepts as necessary to the work of invention within them, even if it breaks a game to allow a new game to break out. That is, expansion of the narrative universe is allowed. What is not allowed is the death of a game by terror, by being forced out by a dominating game that acts to create its own majority. "Natural" death (by lack of "fit" within its community) appears to be tolerated, but death by force, by prescription, is resisted. What Lyotard proposes is thus a limited autonomy for games, a restraint on the back and forth movement by means of which narratives both expand and collapse. One does not, therefore, necessarily have to work outside the Lyotardian framework to conclude that new games also arise out of the contest among games as they both clash in contests for dominance and network to reflect the interests they share by virtue of the participation of members in multiple games.

We are, in sum, brought to recognize both the relative autonomy and the relative authority of any language game, just as we might speak of the limited agency of a given subject (for Lyotard, of course, the game "plays" the person, reflecting the unresolved problem of the subject position in his work). In this context, we could extend our understanding of language games by means of an approach like that taken by Anthony Giddens - that agents make society but not under conditions of their own making - so that we arrive at a sense in which subjects are regarded not merely as the addressees of a language game or small narrative (Lyotard does suggest that the addressee "accepts" the call of the narrative and is in that sense its addressor) but as partial authors as well (that is, they do not "produce" society but through self-reflexivity they act to "reproduce" it). Such a notion is certainly responsive to both the process of indeterminate justice and the complexity of language games.(7)

Nevertheless, even as we address the element of the individual subject and the single language game, we must also consider the question of the networks that relate persons and games and the sense of mutual obligation or temporary agreement that negotiates incommensurable differences without consensus on universals. Whereas we are in some sense condemned to heteronomy, shared positions do arise and identities of interest do exist, however temporary they might be.(8) It might very well be these momentary points of identity that allow us to construct the form of determinant indeterminacy that Lyotard hints at. It may be a playful invention, an arbitrary, if purposeful, intervention, or a momentary accidental interface that creates the conditions under which different language games accept the "call" of a point of identity (the "temporary contract" of a given judicial opinion). But it is an opportunity, nevertheless, a freeze-shot in time to be seized and put to work for us. It is, after all, a move, however hypothetical, that temporarily halts the infinite regression of events in order to assert agency and give human affairs human meaning. In this paper, it is such moves, such inventions that constitute the constructions we shall study.

The Postmodern Context

In this brief survey of Lyotardian thought, we have touched on what Schanck (2508) regards as the quintessential elements of postmodern thought: that the self is not autonomous but a cultural creation (largely, if not exclusively, through language); that there are no foundational principles; that knowledge is a function of belief and is limited to a particular context; and that language does not correspond to reality (for our purposes, the only reality we understand is that provided through language; language endows that reality with the meaning we ascribe to it). The problem in law is that reality is considered to some extent representable by law and that some knowledge is understood to transcend the local or the particular. The relativism into which Lyotard casts us is thus regarded as problematic, given what it poses as "the uncertainty of knowledge, the impossibility of disinterested inquiry, and the indeterminacy of meaning" (Schanck 2511). Certainly the contrary postmodern notions that there is nothing outside the text, on the one hand, and that there is no text, on the other, have thrown legal interpretation into a seemingly irresoluble quandry. One notion, however, appears to rescue us from complete relativism and is still compatible with the Lyotardian world: Stanley Fish's concept of the "interpretive community" (Is There a Text). Much like the language games with which we are now familiar, Fish's communities represent groups whose members share certain ideas and practices that condition or determine their interpretive activities. The conventions that organize the experiences of these communities are not chosen by a community's members but are accepted by them as naturalized or implicit norms embedded in the community's life form (Margolis). But Fish, more readily than Lyotard,(9) acknowledges the diversity within as well as between his communities, given that members join relationships in different contexts that place them in different interpretive groups at different times (Is There a Text). This notion preserves the Gramscian prospect of heterogeneous historical blocs and represents a way to break the potential tyranny of presumptively singular language games. That is, diversity in this view would act both within and between language games or interpretive communities to ensure a continuing need to dialogue even inside dominant paradigms serving as tyrannical metanarratives. Thus, whereas pre-given interpretive constructs act as determinants (Fish's "condition of consciousness," Doing What Comes 372, 394), it is equally the case that voices of diversity continuously contest their determinative effect, introducing the element of limited or relative autonomy favored by both Gramsci and Giddens. We are still faced with meaning that varies by community or game, but the pressure for an ongoing negotiation of social, or legal, order is thereby preserved. The likelihood of a single tyrannical game is minimized as is the prospect of a relativity that effectively holds all games always equal. Differences within and without provide incentives to move out from fixed singular positions to address different conditions and to network with different perspectives. As contradictions are surfaced, changes of mind become possible and aggregations of belief more varied. The expectation, as a result, is that interpretive communities will always consist of the inconsistent in a process of continuous self discovery and invention. Within their very fabric is embedded the mechanism for change. And that change occurs not merely through dialogue but through rhetorical conventions common to a language game (Lyotard's paralogy in another guise) that enable the composition, deconstruction, and reformation of arguments. Subsequently, a community legitimates itself through the persuasiveness of its argument, insofar as the argument itself is a "fit" for that community's governing assumptions. More than a tautology, this arrangement constitutes a form of back and forth movement by means of which an argument tests itself against its community even as it creates the very community that will confirm it as an argument.

The relevant question raised by this line of argument is thus not so much whether one's argument is persuasive, and to whom (it is persuasive to the members of one's own community as long as it is a fit for the community's assumptions), as whether it is justified in any larger sense. This is a question that, under the terms of the present discussion, we cannot answer. Having discounted the possibility of a higher form of knowledge that transcends any given community's or game's expression (consistent with our position that thought is a product of culture), there is no way we can validate a given argument except within its own community. The only prospect, as a result, that bears up under examination is one in which we commit to tolerating each game's views, that is, a wide range of views, under the assumption that we act on beliefs not because they represent reality or because they are true but because we choose to believe and we choose to act on that belief. Such a process is unaffected by the shift away from foundational knowledge that the language game approach requires.

Having laid the foregoing groundwork, we can consider the law through the practice of language games. Giving up the notion of an abstract justice, we seek legitimacy on a case by case basis through legal texts themselves (the products of language games and interpretive communities) and our ability to interpret them. We do not assume legitimacy, but interpret to create it. We reject consensus in the search for temporary agreement. And we regard each text as a site both for contestation (within and between the unique perspectives of each language game) and of agreement (the agreement that makes a unique perspective possible but, more importantly, that makes possible the momentary convergence of different perspectives, a convergence that invents a new temporary community out of existing communities to reach to the future in a search to create an always as-yet-to-be determined justice).

What we cannot claim is that this approach will yield any greater legitimacy as a reading practice than any other approach. Indeed, as Culler points out, every reading of a text is at least partially a misreading (see Schanck 2581). Nor can we offer any assistance to the search either for authorial intent - which always risks breaking loose from its moorings in the text, thereby undermining its own "author-ity" - or for what Derrida calls "iterability" ("self-conserving repetition," 997), which Cornell claims is misused as a single repeated meaning that creates of the law "a self-justifying system" ("Violence" 105; "Lighthouse" 1708-1709).(10) Moreover, the search for a point at which one can stop the process of searching for justice and say that it has been found or created will also be frustrated by this paper. Where one terminates the search is always arbitrary and can thereby represent only one reading or intervention in an ongoing and continuous series of readings. Any such termination can be no more than a preference for one particular reading, a privileging of one context for reading over another, when what we are proposing is the momentary interruption of interpretation as we try out a variety of readings leading to future constructions of justice that are themselves only temporary. Schanck may very well be right in his contention that such an approach "may not tell us how to construe [texts], but it very definitely tells us how not to interpret them" (2595).


Mechelle Vinson brought an action against Sidney Taylor, Vice President of Meritor Savings Bank and manager of a branch office, as well as against Meritor Savings Bank itself, claiming that during her four years at the bank Taylor had threatened she could lose her job, fondled her, exposed himself to her, forcibly raped her, and repeatedly forced her to have sex with him both at work and off the work site. Because she was afraid of Taylor, she did not attempt to report his harassment or use the bank's complaint process. Taylor denied the allegations, contending that Vinson made the accusations as a result of a business dispute. The bank denied the allegations as well and held that it was unaware of any sexual harassment by Taylor which, if it did occur, occurred without its consent or approval.

Whereas the events underlying Mentor v. Vinson have been regarded as ambiguous (given the prospect of Vinson's presumed consent) and therefore as an inappropriate case to introduce hostile environment theory, the very fact of ambiguity as an essential feature of hostile environment itself(11) and the centrality of indeterminacy to language game theory make this an appropriate case for the purposes of this paper. Indeed, a game approach proves a useful tool in opening up Meritor v. Vinson to discussion of quid pro quo and hostile environment theory (game contexts), assumptions of asymmetrical power relations and the biological "naturalization" of sex (game rules), subject-object and determinate-indeterminate analysis (game phrases), and sex harassment, liability, and consent issues (game content). Language games are informative, for example, on the issue of rule formation and its impact on legal standing. Just as Meritor in its narrative (Petitioner's Brief, No. 84-1979) adopts as its game "rule" the "routinization" of sexual activity as biologically "natural" (on the grounds of "sex"), the Vinson narrative (Respondent's Brief, No. 84-1979) adopts as its rule the routinization of sexual discrimination as expressive of dominant power relations that have become socially naturalized (on the grounds of "gender"). Because a sexualized environment cannot be unlawful when such sexual activity is constructed as "natural" (the sexualized workplace itself being regarded as a norm), the Vinson "rule" that sexual discrimination be understood to be pervasive and severe as a natural condition is critical to that condition becoming a starting point (a descriptive "is") from which prescriptives can be derived. Nevertheless, once sexual discrimination is accepted as pervasive, how can it then be redressed as an "injury" since it is now a permanent and endemic condition that to some extent condemns men - forced to endorse it even where they perceive it as counter to their own values or interests - as well as women? Strategically, is a game rule that starts from a base of injuries that are virtually indistinguishable from a presumed norm more promising to a politicized game than one in which the discriminatory is clearly differentiated from the non-discriminatory, even if it admits fewer classes of injury? By the same argument, should sex discrimination be distinguished from other forms of discrimination (racial, religious, ethnic) thereby isolating it from available strategies in those areas or should it be linked at the risk of losing its unique value and its sense of an individual as opposed to a group harm?

Voices of the Game

Unpacking Meritor v. Vinson requires that we examine the questions it asks(12) and the way in which it asks them. The three briefs that inform the disposition of the majority opinion (those of the petitioner, respondent, and the amici curiae - the United States and the EEOC) not only provide us with those questions but, by the way in which they variously address the questions, they open alternative language games for our consideration.

The three questions before the court are the questions of the relation of sexual harassment to sexual discrimination; of employer responsibility for an agent and thereby the employer's liability; and the admissibility of speech and dress as evidence of voluntary conduct.

Question One

For Vinson, the question posed initially is "whether sexual harassment as a condition of work, because it is sexual, is less discriminatory than other forms of employment discrimination" (Respondent's Brief, no. 84-1979). This posing of the question implies the asymmetrical power implicit in hierarchical gender relations. Vinson establishes a frame of reference in which inequality is based upon two forms of the same thing which are nevertheless treated differently to thereby create an inequality. Vinson "hails" as its referent the theory of power relations which holds as its prescriptive that asymmetrical gender power relations determine unequal relations in the workplace and that therefore inequality can be assumed since the workplace can only be understood within that larger frame.

Meritor raises this issue as its second question, posing it in the following terms: "Do allegations of sexual advances, without any loss or threatened loss of economic or other tangible job benefits, state a claim of employment discrimination because of sex in violation of Title VII" (Petitioner's Brief, no. 841979). The Meritor brief takes an inequality (routine and thereby "trivial" sexual advances) and by implication poses the negative - that is, how can one hold that which is unequal as equal, the measure of the difference in categories being material harm. Meritor's referent is also a prescriptive, that is, the "biological" rule that sexual advances are "natural" and therefore non-discriminatory, even if they are based on a power relation that is asymmetrical - since that relation is itself "natural." Posing the question in this way represents a logical shift away from sexual harassment to sexual advances, and to sexual advances that do not represent tangible loss, so that the former does not constitute a quid pro quo injury (in which a party expects to receive something for something) and is therefore not to be considered "true" employment discrimination.

The EEOC, like Vinson, raises this issue as its first question: "Whether unwelcome sexual advances by a supervisor toward a subordinate female employee, which create an intimidating, hostile, or offensive working environment, constitute employment discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 20002 et seq" (Amici Curiae Brief, no. 84-1979, 5). The EEOC brief contextualizes the unequal term (sexual advances) by specifying it (as unwelcome) and incorporating its outcome (hostile environment, immaterial harm) to create an equality (equal to employment discrimination by sex). EEOC addresses that which is legally formulaic, staying within "technical" prescriptive terms.

Each move is thus grounded in a prescriptive dictated by a game and framed by the way in which that game contextualizes the event described. That the event in question can be "described" is nevertheless itself in question, given that one cannot step out of the frame of interpretation of which one is a part (which places "description" itself at risk since it is thereby incommensurate with "truth" in terms of a "knowable" reality). On question one, we are thus faced with three games. One (Meritor) limits the term through a biological referrent to "sexual advances" that represent "natural" sexual behavior. The second (Vinson) restricts the term to reference the notion of sex as "hierarchical" relations. The third (EEOC) qualifies the term through a legal form of neutrality linking singular games to create the hybrid mix "unwelcome sexual advances."

Question Two

The question of speech, dress, and the voluntariness of relations is raised as the second question by both Meritor and the EEOC. Meritor poses it as "Is evidence of the complaining employee's workplace dress and voluntary conduct and her sexual fantasies and proclivities admissible in defense of her Title VII claim" (5)? The focus in this construction is on whether the employer is to be denied a defense, that is, whether the employer is to be victimized by additional constraints on behavior, the emphasis here being on expressions of the victim (treated as behaviors) whose admissibility should be measured in terms of their material effect on responding behaviors.

The EEOC asks its second question in the following terms: "Whether the Court of Appeals erred in determining that respondent could show a violation of Title VII in this case, where the district court has found that any sexual relationship between respondent and her supervisor 'was a voluntary one' and that finding was not clearly erroneous" (5). The EEOC sticks to its "technical" game, a presumptively neutral if not transcendent perspective, looking to the issue of whether the "game" was properly "ruled." Such a prioritization of a rules-based approach acts to dehumanize and decontextualize the discourse. In the construction of this question, interrogating the legitimacy of a conclusion regarding overruling within a chain of rulings has the effect of reifying rulings on rules, thereby further emptying the event of content and thus of meaning.

Vinson, treating this question as a tertiary concern, asks "Whether evidence of plaintiffs dress and reported fantasies is admissable in a sexual harassment case" (5). Framed from the victim's perspective, this posing of the question essentially addresses whether the victim rather than the presumed harasser can be put on trial. Here, the construction focuses on "expression," that is, on speech and reported fantasies, implying freedom of expression concerns rather than actual behaviors.

Question Three

The third question, employer liability, is given priority by the Meritor brief, which asks "Is an employer absolutely liable under Title VII of the Civil Rights Act of 1964, as amended, for sexual advances allegedly made by a male supervisor toward a female subordinate where the employer neither knew nor reasonably could have known of, had no opportunity to stop, and did not intend to permit the sexual advances?" (5). Meritor contextualizes this question to create not a blanket or universalizing set of criteria but criteria pinned to reservations based upon specific circumstances addressing the particulars of volition and knowledge. Meritor creates a picture beyond mere ignorance or motive, a picture, rather, of active inhibitions on the ability to act, given the condition of informational deprivation in which the employer is placed. Meritor's construction of this question implies structural constraints on subjectivity in which the employer's impaired autonomy is used to excuse the absence of determinacy (an established norm) commonly expected to be exercised by one who holds disciplinary authority in the private sphere. Thus, while the employee's behavior (in speech and dress, for example) is challenged for being outside a "reasonable" norm, the employer's is excused for a comparable deviation.

Like the Meritor brief, the EEOC brief attaches a knowledge requirement to its liability question, in this case as the third question it takes up: "Whether an employer can be held strictly liable for an offensive working environment created by a supervisor's sexual advances, where the employer does not know of, and could not reasonably have known of, the supervisor's misconduct" (5). This posing of the question stays within the "event" without subjectifying the employer; it restricts construction of knowledge in terms of working conditions and does not extend its consideration to behavior or motivation, suggesting its presumed neutrality as a mediating position between Meritor and Vinson.

Vinson, considering this question second in its brief, asks, by contrast, "Whether employers are liable for sexual harassment by supervisors which creates a discriminatory working environment" (5). On this question Vinson takes a categorical position obviating intent and knowledge as qualifications and opting for strict agency, a construction that both objectifies the employer and requires the employer to assume responsibility in the subject position.

Narrativizing Meritor v. Vinson

The two legal theories that provide the game contexts for Meritor v. Vinson (see Barton; Bennett-Alexander; Bull; Vinciguerra) - quid pro quo and hostile environment theory - illustrate the poles of analysis for hegemonic and alternative narrative constructions. Quid pro quo theory sponsors an economic argument in which tangible benefits measured by an "objective" standard are at issue. This oppositional construction depends for its authority on the presumed clarity of its posing of the issues and the "neutrality" of its judgment. It assumes a hierarchy of values by means of which a protectionist law guarantees special treatment to a dependent group deprived of its own agentive subjectivity. Closed and singular in its treatment of issues, quid pro quo operates as a master narrative (that is, a narrative that grounds its view of what "ought to be" for other language games on the "is" that describes its own language game). It is characterized by the stability of restricted story lines, clear meaning, oppositional values, determinate outcomes, and the assumption of narrative smoothing (unifying the narrative line to create thematic consistency and purpose; see Spence "Narrative"). The restriction of workplace options under quid pro quo theory (submit, quit, be fired, or be penalized) makes for unenriched linear storying, storying that is melodramatically black and white in its values.

By contrast, hostile environment theory constitutes an ambiguous narrative in which subjective determinations of welcomeness and consent intrude. As a construction it is less amenable to smoothing and lacks the meaning-given clarity of quid pro quo. Rooted in individual and local events, it is less "knowable" in a universal or generalizable sense; at the same time it expresses responsiveness to the richness, variety, and unpredictability of ambiguous everyday events (related in Meritor v. Vinson to a case by case approach, the victim's perspective, and specific harms). This narrative is open to multiple lines and thereby to change; a resistant narrative, it is characterized by its rich story lines, ambiguous meaning, responsiveness to events, and its ability to surprise. The ambiguity of hostile environment storying (with its shades of gray, its high interactivity, and its unknowability) is closer to lived life, less amenable to smoothing, to contrivance and thereby commensurately more open to the unknown and its unpredictability (Spence Narrative, "Narrative;" see also, Jameson; White, Hayden).

Differences between these two types of construction depend to some extent on the effects of narrative smoothing. Where we find hegemonic perspectives, for example, we find that "meaning" is given to "interpreted" events and that meaning is given greater value than events themselves. Such meaning-giving activity and its ability to create directive outcomes suggest an analysis that privileges generalized groups. Uninterpreted events (that is, highly context-dependent events(13) which we find more highly valued in hostile environment theory) are more closely aligned to real world everyday acts that express a high regard for multiplicity and thereby for ambiguity.

We find a comparable distinction made between the two theories in terms of foregrounding and backgrounding strategies. Foregrounding tends to smooth questions of law, to narrow them to a refined point capable of clarity and resolution. Thus, the hegemonic narrative asks whether, as in cases of workplace discrimination or harassment, there was a good explanation for a firing or whether the party not hired or fired was a qualified applicant or employee. Alternative narratives interrogate dominant practice to raise larger backgrounded or backgrounding issues. Buried questions such as whether sexual blackmail or race prejudice has a place on the work site surface. What quid pro quo theory left unexamined or assumed away is here open to interpretation specifically because it is unexamined. How the buried functions as a question because it has been buried takes center stage, leading us to consider whether it might pop up unexpectedly as a figure(14) to force a denouement or become lost in the background and remain a "gray" issue. Only that which gets smoothed gets foregrounded so that enriched/ambiguous lines tend to remain backgrounded (and backlighted, so that even when light is shed on them little other than their contour is apparent, leaving their nature as a threat still very much at issue). Once the latter becomes figurative, it becomes smoothed (in order to emerge), in which case it becomes itself a tyrannical notion (by virtue of being smoothed) and loses the enriching quality of its ambiguity. In light of this process, alternative narratives themselves have the potential to become prescriptive and thereby hegemonic.

The questions raised by the three briefs we are examining offer us three different language games, each "prescribing" its own rules and implying the contexts (hostile environment and quid pro quo theory) within which the case content - sexual harassment, consent, and liability - is situated. The "internal" context (from within which the game's judgments will be made) roots each game, determining the function of moves and their meaning and establishing the agreed-upon construct in terms of which an interpretive "fit" must occur. The determinativeness of that fit is constructed in each game in several ways: through choice of context (quid pro quo being "objectively" more determinate than the "subjective" hostile environment); through content emphasis (speech/dress/consent being more determinative than sexual harassment itself); through rules (internalization of the "naturalness" of sex is more determinate than conscious acceptance of "contested" asymmetrical power relations); and through phrases or moves (the active subject and the dependent object positions are strategically constructed as relatively more or less determinate depending on content and language game). The strategic moves that appear critical to the narrative construction of these language games imply the presence of a transcendent capable of negotiating the differences between games - a task about which Lyotard is less than sanguine - and resolving the subject-object relationship to determine subject-agency and thereby responsibility and liability.


Subjectivity in language games calls forth the performative or "productive" aspect of narrative, which is understood as the ability to generate new moves and to introduce the "political" as a means of exposing differends to illuminate the dissensus of discourse (Lyotard, Postmodern 62; see also Bourdieu). It replaces essences with interactions so that players assume responsibility for the rules to which they submit the statements they propose. By this description, focus on subjectivity recovers for us the pragmatics of social production and reproduction both as moves in language games and in linkages between them. Moreover, subjectivity creates the possibility for linkage of phrases as it liberates subjects from complete determinism of the game (Lyotard's notion of the game "playing" the subject) and makes inventions that lead to new games possible. To restate this principle, we are examining subjects both as authored by narratives and as authors of narratives and thereby responsible for the process by which the meaning of narratives is constructed. If, as we posit, narrative not only uses but is "used" by subjects, its technology must also be stripped away to expose those uses. Finally, we engage narrative as an event of performance, grasping "the constitutive force of narrative" (Readings 85) through phrases that pragmatically situate actors, referents, and sense with regard to each other (Lyotard, Differend 194) and thereby enhancing the notion of subjectivity as a fit "subject" for discourse.

Considering subjectivity in Meritor v. Vinson, one could easily picture two opposed narratives framed for discussion. The first centers the "old" notion that women use sex to gain privileges in the workplace. based on spin-offs from the biblical interpretation of "evil Eve," it plays on dominant cultural stories in which women must prove that they do not seek sexual privilege and that moves made by men, and based on male privilege, are themselves unwelcome. Further, women must act against the assumption of the naturalness and pervasiveness of sexual attraction (the underlying notion that provided the story's initiating point) and demonstrate that women do not act in the workplace on that basis.

The character of women in the second workplace narrative is one that resists the prevailing notion of the present workplace environment (predominantly male in its outlook). Denying the dominant narrative,(15) this version finds itself without cultural support and in the position of having to refuse assigned roles - roles that would require victims to identify with the perspective of the victimizer. Victims are, by virtue of this narrative, placed in the position of portraying themselves as not "welcome" in a workplace that they "story" as discriminatory, prejudicial, or harassing (of interest here, see Ardener; Rosaldo and Lamphere; Rogers). The second construction centers on the notion that, situational power being unequal,(16) men must prove their acts foster equality and therefore are welcome (on welcomeness, see Juliano; Bull; Klare). This narrative approach leaves men in the counterintuitive role of players who must assume that equality prevails in the face of the inequality of the male-privileged workplace. Playing a language game that requires they demonstrate that dominants do not act like dominants, their roles are thus those of performing under conditions of asymmetrical power relations as if their behaviors are inconsistent with inequality. Unlike the first story, in which women must demonstrate that they are indeed within and a part of the very same world in which they are depicted as "unwelcome," men in the second story must demonstrate that they are not within a world made by men.

In Meritor v. Vinson, the "welcomeness" requirement (by means of which sexual advances should be welcome to those who are the object of such attentions) assumes that since a socially normative environment is based on the asymmetry of sexual relations, it could by its very existence he "hostile" to women. This suggests that women are themselves aberrational in such a context, that is, in the "all too human" marketplace (free exchange) of work relations. Thus, the welcomeness to women of sexual advances in the workplace constitutes a play on women's own welcomeness in the marketplace. Raising the issue of women's consent to sexual advances or the "voluntariness" of their behavior under conditions of unequal power relations suggests that women themselves, by appearing to "consent," recognize their own unwelcomeness to which they must "consent" if they are to stay, that is, to demonstrate acceptance of their subordinacy and thereby legitimize the "rightness" of sexual asymmetry. In his conflation of "consent," "voluntariness, "and "acquiescence" as indicating "welcomeness,"(17) Chief Justice Rehnquist's majority opinion demonstrates just such a strategy of arriving at victim volition under conditions of differential power, without actually opening the question for discussion.

One useful way to unpack constructions of welcomeness is to ask the question "How do men feel women should be treated in the workplace?" The answer is likely to be "Like one of the boys," an affirmation of the essentially male nature of the environment. The question then becomes "Why can't women fit in?," replaying the story that women are, after all, aberrational in the public domain and that their "lack of fit" is what is really at the core of sex discrimination and sex harassment law. In either case, the appropriate consideration is not whether women welcome men but whether men welcome women; even more to the point, it is not whether women are sexually welcome (to men) but whether they belong (to the environment). Ultimately, such a construction places the onus on women to make themselves welcome in the workplace and by so doing waive their right not to be sexually discriminated against or harassed. Indeed, women could thereafter legitimately be expected to assume equal responsibility (as they indeed are expected under some interpretations of hostile environment theory) for creating a workplace environment hostile to women, irrespective of the subtext of unequal power relations.

How women are "cast" in the "agency" subplot constitutes one of the ironies of sexual harassment law. For example, the new, improved standard whereby "welcomeness" (rather than "voluntariness" or "consent") and a reasonable "woman's" (rather than a "man's" or a "person's") perspective are engaged to determine the welcomeness of sexual advances in the workplace.(18) Given the shifts in perspective (first, from "man" to "person" and, second, from "person" to "woman"), women are understood to have gained an agentive status that removes limits on their credibility and imposes limits on male credibility, thereby presuming to level the playing field. The intent of the reasonable woman standard is both to construct woman as an equal and to respect the different social experience of women as a gender and/or sex. Woman is thus endowed with subjectivity and is thereby assumed to be capable of and thereby responsible for her own agency.

There are at least two problems with this construction: first, women are not presumed to be "reasonable;" inversely, the dominant perspective holds that reasonableness is an attribute of men (on reasonableness, see Piefer; Childers; Cahn; Ehrenreich; and the critical work of Abrams "Gender"). Privileging the notion of reason (a traditionally "male" domain), the Cartesian dichotomy of mind and body undermines the validity of body (a traditionally "female" domain). The construct "reasonable woman," by this argument, is oxymoronic. Moreover, it essentializes women as a group, denies their disparate experience as a diverse bloc, and reduces them to a generic sameness, thereby undermining the individual woman's experience. The trade-off in storylines is between addressing an underlying social inequality issue at the generic level, thereby denying the experience of women as individuals, and regarding the victim as an individual, and thereby risking reduction of the story to one of the "personal proclivity" of the perpetrator as an individual. For all that it is well-intentioned, the reasonable-woman standard nullifies or at least mutes a woman's perspective and undermines rather than enhances her subjectivity. The welcomeness standard offers comparable difficulties. Once a woman's own acts become central in a sex discrimination or harassment complaint, that is, once a woman is "subjectified" by focusing on her own acts (her "welcoming" behaviors), her sense of her own victimhood (her objectification) is eclipsed. The victim becomes responsible for her own victimization through the relative provocativeness of her dress or the vulgarity of her speech. Now "open" to interpretation, her autonomy trumps her assumed "innocence." Paradoxically, her "non-intentional "acts (her speech and her dress) (see Pollack; Klare) upstage her "intentional" expressions (her verbal assertion of unwelcomeness and her denial of consent) (see Chamallas "Writing"), thereby supplanting her agentive status with a non-agentive one.

Subjectivity/objectivity in sex discrimination and harassment law is equally implicated in the body of law from which it borrows, race law (Chamallas "Feminist Constructions"; Harris).(19) The master/slave connotations of such a borrowing suggest that women would lose the presumption of subjectivity, assuming a dependent identity if only by association. The legacy being one of slavery, women are presumed to be born into a society not of their own making and are constructed in such a way that they are thereby deprived of the ability to "make" society themselves; that is, they are to be regarded as "protected." Moreover, if sex is compared as a protected classification not only to race but to ethnicity and to religion, it loses its uniqueness (its local, experiential, distinctive history) and becomes categorical, that is to say, taxonomically abstracted. This is not to deny the risk of individualizing, given that a woman, if reasonable, can always be attacked as unrepresentative and, if unrepresentative cannot thereby pass for reasonable in any more than a singular, idiosyncratic way. The risk of separating from the influence of race law is, in any case, equally debilitating, as the Court of Appeals for the District of Columbia Circuit (1985, 753 F.2d) opinion reveals. Here, sex is distinguished by virtue of its "naturalness, pervasiveness, and . . . [the] legal neutrality of sexual attraction." The opinion assaults the analogy to race in a false contrast between "race prejudice" and "sexual attraction" in which the former is regarded as "invidious" and the latter as "natural," a construction that yields a story outcome in which there is no intrinsic offense as a basis for discrimination.

In effect, women have been un-sexed in the workplace. The equivalent in race theory would be to de-racing (of interest here is Morrison, in particular essays by Crenshaw and Lubiano), a colonizing tactic that depends upon erasing the history of women as a sex to obliterate the inequality of their treatment and hold them, by default, to a male standard. A second alternative is a form of separate but equal status (a female-isolating strategy), once again a strategy unmasked in race theory through its assertion that separate, being anything but equal, carries the stigma of inferiority.

A final twist in terms of the subjectivity/objectivity dichotomy occurs in traditional agency theory in the calculation of liability in the Meritor case. The employer's "constructive knowledge" of acts of sex discrimination or harassment constitutes here an area of concern. In one reading, if the employee knows of the harassment and the employer does not, we have effectively reversed the knowledge requirement, for now the question is whether the employee knows (and reports), not whether the employer effectively supervises the workplace and his agents (including generating informational reports). The workplace hierarchy is thus reversed so that the employee's knowledge (reporting), actions (speech and dress) and intentions (voluntary or soliciting), that is, the subjectivity of the employee and her presumed collusion in the harassment, bear a greater responsibility than the discriminatory action of the employer which is now mitigated by a lack of knowledge that objectifies him in the new power equation. Not only do inversions of this type clarify how authors and receivers in games mutually implicate each other, but they explain how tentative are roles that can so easily be transformed into their opposites and how easily such roles can be reconstituted.

Such objectification occurs in the EEOC brief which constructs the determinate as a means of producing "objectivity" and "neutrality" in hostile environment analysis. We find, for example, that a transcendent overrides differences without appearing either to take a position (that is, to establish its own potentially "terrorizing" prescriptives), to operate from outside rather than from within the event, or to assert an arbitrary determinativeness (to achieve a sufficiently universalizing force). Clarifying the ambiguous, it subsumes voluntariness to speech and dress behaviors under the assumption that behaviors are less ambiguous in their meanings than the "meanings" we give to behaviors. In the same way, the victim's failure to report the harassment is taken to stand for a state of consent. Determinations of the clarity with which speech and dress speak to sexual harassment are similarly inflected. If, according to the EEOC brief, I cannot be said to have waived my right not to be discriminated against through speech and dress, they can, nevertheless, be used as evidence that conduces to my losing that right.

The EEOC brief extends its objectifying to its treatment of agency. Here, the agent is separated from the employer except in terms of strictly delegated authority relating to decisions on employment status. The workplace agent is presumed to operate only within the frame of specific events, times, and places as an employer surrogate. Psychological doubling thus displaces one's other sell the personal self, to a distinctive "other" domain. The professional self provides cover in a domain described in terms of employment status, "business" of the employer, authorized action, lack of employer knowledge, and harassment that is neither severe nor pervasive. The personal self, by contrast, operates in a domain described in terms of the environment, other than employer business, unauthorized, lack of employer knowledge, and pervasive or severe harassment. This distinction is presumed to hold in the face of the interpenetration of the two domains, their frequent indistinguishability, the presence of an agent who remains cloaked in the employer's authority irrespective of the domain he "inhabits," and the ambiguity of the everyday work environment as an influence on decisions affecting employment status. Trying to disidentify agent and employer and still retain the notion of the agent as an autonomous subject is self-contradictory. The agent has no separate "owned" authority; sharing in the authority of the employer, he can never be more than a "relatively" autonomous agent whose authority is not self-generated.

The kind of contradictory clarity brought to the event by the EEOC brief undermines the character of hostile environment analysis in yet other ways. Its claim that sexual attraction is natural, pervasive, and legally neutral and that strict liability for the employer would lead to policing voluntary sexual relations sets an arbitrary limit on our understanding of what is fundamentally an indeterminative situation. Moreover, it presumes that a "truly" pervasive hostile environment would represent an overturning of the pervasive "natural" order in such a way that the presence of harassment would be readily apparent rather than ambiguous. In these terms, any harassment that was ambiguous could not be true harassment, even if we understood ambiguity as characteristic of hostile environment.

The EEOC's treatment of "particular individuals" expresses a comparable objectifying analysis. In its discussion of a resolution for the case, the EEOC brief proposes a focus on "the systemic relations between the conduct of particular individuals" (106). This inversion suggests that the system "uses" people rather than the more subjective standard of interactive relations. By this analysis, the supervisor is seen in his systemic relation fulfilling the role of agent of the employer. The victim is understood in terms of her reporting requirement, the employer in terms of his knowledge of the operation of the system, and sexual harassment itself in terms of procedures, policies, and implementation. Privileging the structure and not the actors themselves, the EEOC has produced an approach that itself conduces to failed subjectivity.

The EEOC, in sum, imposes false objectivity on the workplace environment: it links liability to knowledge (under the assumption that we act under conditions not of information deprivation but of knowledge) in a rational cause and effect relation; it assumes a rational connection between expression and action (ascribing objective "criteria" to speech and dress) and between failure to report (an objectively measurable act) and voluntary consent. The EEOC criteria, being determinate, lead to diminished liability given a construction of environment that is informed by "objectivity."

Linking Games

As the final move in this paper's argument, we find that game analysis requires some understanding - albeit sketchy - of the prospect for linking games. In his treatment of Levinas, Lyotard considers whether games can remain closed in, learning nothing about themselves other than what they already know. This is so because the game, like the ego, finds itself through exteriority - its place in the heterogeneity of voices which "announces the insufficiency of knowledge" (Lyotard, Differend 110). Between games, there is always a differend present, that is, a cause of conflict that cannot be equitably resolved for lack of a rule applicable to different language games that would wrong neither (Lyotard, Differend xi). The differend is a point of dispute at the point of linkage, several being possible, none being "the one, right, authoritative linkage" (Readings 117). Moreover, there is always the possibility of injustice in linking, in which one game becomes hostage to another. Yet linkage does occur; consensus is sought in the midst of dissensus and "temporary contracts" (an alternative to permanent institutions) at the local level are possible, "agreed upon by its present players and subject to eventual cancellation" (Lyotard, Postmodern 66). But the linkage of which Lyotard speaks is one where game phrases (that is, strategic moves that negotiate the differences between games) link to create a pattern, thereby giving meaning to the event. This kind of linkage still testifies to the differend (Postmodern 65). The process, called "agonistics," is one that proposes bringing transcendent principles into the dialogue as partners rather than absorbing differences through consensus (Differend 26). By this means, the hegemony of one game over another can be contested by the political exercise of a struggle over linking.

The Supreme Court majority opinion in Meritor v. Vinson (written by Chief Justice Rehnquist, joined by Justices Burger, White, Powell, Stevens, and O'Connor), 20 the product of a political struggle over linking, emerges as a new game of constructions based upon linkages between elements of other texts, among them the Court of Appeals opinion, the petitioner's brief, the respondant's brief, and the EEOC amicus brief. As such, it offers an opportunity for considering not only how linkages occur and how new language games emerge but how linkages are resisted.

In terms of language game theory, the majority opinion's disposition to follow the EEOC brief rather than the EEOC guidelines in its interpretation of Title VII language (as Justice Marshall's concurrence indicates) suggests the "terrorism" of one briefs prescriptives. Its posing of common stakes values the rules of one game (Meritor) in its privileging of the employer in its agency argument, its de-subjectivization of the hostile environment context (in its focus on "systemic relations"), and its handling of speech/dress content - to the extent that they "wrong" another game (Vinson).

The majority's preference for oppositional description of the hostile environment context (as "non quid pro quo") itself undermines contextually common stakes. The determinate inflection with which it greets subjectivity exposes its pretense of "judging without criteria" and its pretense of judging from within the event, thereby ensuring a lack of "fit" for the event's governing assumptions.We see this both in terms of its discomfort with the subjectivity of a hostile environment as well as its view of subject-object relations, including the majority opinion's requirement of severe/pervasive harassment, its acceptance of limits on a supervisor's agency, and its use of speech and dress to determine unwelcomeness. The majority opinion's linkage to EEOC moves that presume an exteriority or separability - in the role of "judging" to which the agency's guidance aspires - ties it to a "false neutrality" that imposes itself as a means of singularizing the multiplicity of language games. Betraying the role of partner in a dialogue, the majority is unable to both establish the crime and legitimate its authority in this act of judging (Lyotard, Differend 56).

In this regard, one language game speaks its rules for another, and in the new game that emerges it is the addressor speaking to an addressee rather than an addressee listening that dominates (Segal, "Language" 212; see also Segal, "Postmodernism"). On the issues of agency and liability, the majority opinion is faced with a comparable inability either to locate common stakes or to link differends based on mutually agreed to positions. Agency, for example, holds the issue of liability hostage to the victim's use of a reporting procedure. Elsewhere, the opinion regards an actor in the object position accountable for her failure to react agentively to an action of a subject in a position of power, leaving the victim accountable for the employer's knowledge or lack of it in a situation where knowledge is a component of the power regulated by the superior party. A contrary construction that might have "read" the female victim in the workplace as subordinated in both the male-female and the employer-employee relationship (and thereby not responsible for the knowledge of the employer) would equally have linked the opinion with the position of one language game, unaffected by the common stakes relational autonomy (addressor and addressee both "listening") would have generated.

In the majority opinion, a game context that would allow linkages is largely left underdetermined so that the possibility of a rich networking of phrases is commensurately diminished. Hostile environment is parenthesized as "non quid pro quo," suggesting a binary view of the workplace that recognizes the existence of a hostile environment construct without admitting its contextualizing or incorporative qualities. Hostile environment in its broadest presentation could, for example, have provided the necessary conditions for quid pro quo or represented the most inclusive expansion of the possible ways in which unequal power relations privilege the powerful; it did not have to have been presented as merely constitutive of the non-tangible part of the discrimination equation. That a hostile environment need be sufficiently pervasive and severe to create an abusive work environment is indeed considered, but sexual discrimination as a prevailing social structure or predisposition already prevalent before the fact and therefore operating as an understood norm is left unaddressed.

Equally reductive is the opinion's view of race discrimination as a precedent for discriminatory sexual harassment. The impact of such a precedent on speech and dress, given that Vinson was black, is left unaddressed, obviating the possibility of cultural differences in the reading of those "messages." So are the hidden assumption that the prevailing stereotype of black women desiring sex could have informed the District Court's anti-Vinson opinion and the prospect that discrimination against a "black woman" had affected this case.(21) Individual experience, the particular event, and context are subsumed in "the totality of circumstances" and "the record as a whole" which are used here to introduce not the victim's freedom of and "difference" in expression but the subjectivity of her speech and dress "behavior" as they constitute her as a consenting actor and a contributor to the hostile environment about which she complains. It is thus her consenting behavior rather than her experience as a victim or the employer's discriminatory behavior that the construction places at issue with the introduction of contextualizing information.

In other parts of the decision, however, the majority opinion demonstrates some degree of linkage. Its frame of reference, for example, recognizes the reality of the non-objective domain associated with the "lack" of tangible loss insofar as it is sufficiently problematic in its pervasiveness and severity in constituting an abusive environment. It asserts a link between sex and race insofar as harassment negatively affects the "terms, conditions, and privileges of employment" and thereby acts as a barrier to equality. It admits unwelcomeness, excluding the voluntary except insofar as speech and dress can be said to constitute welcomeness. Finding no automatic liability and accepting some limits on an agent's actions for which an employer would be responsible, it requires more than mere policy and procedures on the employer's part.

In what sense, then, does the majority opinion achieve linkage from among the multiplicity of language games? What are the common referents to which games agree and in which each game has a stake? Which phrase-events or moves are linkable and what is the process by means of which such linkage takes place? Tentative answers suggest that in terms of context games find a common stake in accepting the co-temporality, or parallel existence, of hostile environment and quid pro quo environments and in recognizing that the two domains imply each other. In terms of rules, they would mutually adopt shared agency by all parties in the workplace within terms that expose unequal power relations and restore equality of situational power. The ability of games to link phrases is equally conditioned upon their recognition of subjectivity as a means of escaping determinism and their acceptance of some degree of of presumed neutrality as a guarantor of objectifying criteria to resolve differences. Consistent with acting from within the event, games mutually acknowledge, if they do not embrace, that present reality is informed by both biological "naturalization" of sexual relations and unequal power relations.


The application of a language game approach to narrative analysis of Meritor v. Vinson not only opens sexual harassment law to examination in terms of the on-going conversation among multiple voices but enables us to appreciate the frequent interchangeability of positions within and among games, the heterogeneity that makes up presumably singular voices, and the ambiguity that characterizes much of the context of games. The ways in which linkages of phrases and phrase units occur or fail to occur suggest a new approach to gauging the emergence of new law and appreciating the tentativeness of constructions that, while they presume to "resolve" a case, are no more determinative than the games they are constructed to transcend. One might object that the very indeterminativeness of legal arguments suggests the collapse of the notion of game analysis, since games are themselves rule-dependent. By contrast, since there is no necessary "arche" or "telos" (originary or end point) (McGraw 264; on this issue see Cover; Cornell, "Lighthouse") to justice, but, rather, an on-going continually emerging future for which the idea of justice merely acts as a horizon, games represent a convenient, if temporary, fiction by means of which to model legal discourse (Eagleton, Against the Grain 133138; Ideology 399-400; see also Segal, "Postmodernism" 222). Considering law on a case by case basis suggests that language games are equally and possibly more revealing than other interpretive mechanisms; indeed, this usefulness is enhanced once we acknowledge that we cannot get outside of either language or "life forms" (indeed, there may be no "outside" to either) and that games are implicated in both.

Lyotard's differends may not be capable of being equitably resolved given the lack of common stakes, the incommensurability of language games, and the lack of a transcendent by means of which to judge. But what we are after, in any case, is less a function of resolution than of "practice" (that is, activity sponsored by an agreed-upon set of rules within a game, both in terms of the grammar those rules constitute and the social referent upon which those rules rely) (Patterson, "Toward a Narrative" 62-63; see also Patterson "Postmodernism"). The importance of narrative understanding lies in the way that it allows us to capture the elements of practice that are significant. Given the diverse readings to which legal arguments can be submitted, narrative permits at least facial unity in the reading of law. But this is an understanding that, in a Lyotardian universe, could never accede to any "over-arching" requirements of unity (Raffel 5). We are faced, rather, with outcomes that are likely to be accidents and agreements that are likely to be the result of violence. It is a universe, in sum, of local contracts and unintended consequences, of conversing but not convergent ideas, of a justice, in sum, of disruptive inventions and organized anarchy.


1 The notion of a language game implies a pragmatic universe made up of moves or events called phrases each of which have a set of rules by means of which it moves. These rules situate the author of the move and the recipient and determine the move's significance. The context of the phrase-event is internal to itself and implies "the universe of its production, reception, meaning, and referent" (Readings 115). Determinate principles of judgment that claim to apply to all games represent injustice here for they fail to allow for the multiplicity of an expanded field of heterogeneous games. Doing justice requires resisting metalanguages and allowing the indeterminacy of "judgment without criteria on a case-by-case basis" (107). These games are nevertheless capable of growth and linkage in the absence of universality and without transcendent criteria, but rather through temporary' or local agreement.

2 Politics for Lyotard represents a project at the center of society to make existing institutions more just, a prescription that speaks to doing something else than "what is" (Just Gaming 23). He challenges the presumption that there exists a truth that will lead to the just flit is conformed to. Lyotard resists such a presumption on the grounds that what is just, insofar as it is true, is contextually dependent and therefore rooted in the perspective of one language game. Each game must be allowed to move in terms of its own idiom, a permission critical to both autonomy and freedom.

3 Lyotard takes Aristotle to mean, when he says "in every instance, choose the mean," that "this mean cannot be determined in itself, that is, outside of the situation in which we find it" (Just Gaming 27). In this way, it becomes clear for him that case-by-case dictates a practice for each context and that context "requires that such and such a thing be prescribed" (28).

4 Lyotard rejects the circularity of describing justice as something representational, holding that justice is thereby derived from the descriptive and is then used to justify certain practices as just (Just Gaming 20-21). In this sense, the derivation of the "ought" from the "is" represents the dominance of one game's rules; subsequent derivation of the "is" from the "ought" is thereafter no more than the imposition of a singular game's terror. In another statement of the same process, the descriptive is used to create the prescriptive which is then used to justify the descriptive.

5 Since justice cannot be known, having always not yet been arrived at, no language game's judgment can take precedence over any other, nor can an external idea of justice be held transcendent since the judgment as to what is just has always to be made from within the process (see Williams 493-494). Neither can any judge's judgment be finally judged as just, for, made without criteria, it is always in some sense still unmade. In this way, all the language games remain in play and their differences respected by obviating the prospect that because one party's idiom has been imposed another suffers injustice, not having been signified in that idiom (Altieri 65).

6 Terror for Lyotard is ultimately the pretense that one knows what justice is, leading to a false consensus (some "one" is authorized to say "we"), and the silencing of all opposition (condemning as unnatural those who fail to respect authority). Here we are speaking of such moves as blackmail, adversarial threats and the taking of hostages to force another party to yield or to cause its death by forcing it out of the game. Violence, by comparison, is compared to an incursion, a testing of limits, innovations that foster new moves or "break" a specific game so that a new game "breaks out" of it. (Readings 108-13; Lyotard and Thebaud 67.) The one continues dialogue while the other destroys it.

7 Lyotard finds the just within the triangle of sender, addressee, and narrative where the sender is no longer author but listener. The game of the just is a game of hearing, a game in which "the position of sender must remain empty. No one may put herself or himself there; no one may be the authority" (Just Gaming 72). Something beyond us has taken hold of us and we accept the obligation of its transcendence, a transcendence that comes from vacating the sender position and in which "the prescriptive utterance comes from nothing." Lyotard speaks about the addressee and the sender as contextual roles, such that at any given point one could play either, depending on whether one is receiving or sending a message. One party's speech raises questions for another who then asks questions that raise questions for the first (Just Gaming 6). In this way, given the reader/writer relationship, there is no "mastery of the author in relation to the reader" but, rather, interdependency which creates the possibility for change by the very fact of hearing the question rather than reaffirming one's own speech (7).

8 Lyotard holds that "one leaps from one language game to another" (Just Gaming 93) - interrogative, descriptive, narrative, precriptive games - and that each game not only contains variants within it but "operates a distribution of roles." In other words, there exists "a patchwork of language pragmatics that vibrate at all times" (94) so that roles, because they are contextual, are incommensurable to each other both within a game, between different roles, and from game to game for similar roles. In the absence of unity, the only way to make decisions in political matters, Lyotard concludes, is from multiplicity. But is such a politics possible? The answer, he suggests, is only if multiplicity moves towards unity. Having rejected consensus as totalizing, he is not, however, free to posit a justice that is other than a plurality of justices: "it must be a politics of Ideas in which justice is not placed under a rule of convergence but rather a rule of divergence" (95). In practice, Lyotard's vision of a just society is one in which the actor belongs to several minorities, none of which prevails. Moreover, Lyotard warns against the totalitarian nature of any idea of justice, even one that represents a "nonunitary teleology" (96) and acts through plurality to regulate as a rule keeper rather than a judge.

9 Norris defines "iterability" as a "readiness to be grafted into new and unforseeable contexts" (178); Culler refers to Derrida's use of it "in some way as 'citation'" (as quoted 119), that is, repeated moves that make deconstruction possible.

10 Did such acts occur? (How does one know given the characteristically subjective/psychological factors of hostile environment theory?) Were they welcome? (To whom and how does one separate unwelcome and consensual?) Is sexual harassment a condition of the workplace? (How does one separate routine biological activity from pervasive and severe discrimination? Is hostile environment part of a continuum from quid pro quo discrimination, a condition that makes the latter possible, or separate and unrelated?) Should the employer have known? (Of what does knowledge consist and who has to have it before the employer should have known? What is the extent of and what responsibility does the employee have for her participation in or solicitation of the harassing behavior? Of what does agency consist and to what extent can the object in a subject/object relationship under conditions of asymmetrical power be said to be an active agent?)

11 The order of the questions raised differs from brief to brief: Vinson (the respondant) takes them in the following order: discrimination, liability, and then speech and dress. Meritor (the petitioner) raises the issue of liability first, speech and dress second, and discrimination third. The government brief introduces the questions as discrimination, then liability, and, finally, voluntary relations, but in its presentation conflates the two categories related to the act itself at the opening of the brief. We thus find Vinson and the EEOC most in line in terms of the relative order of importance of their arguments, that is, that discrimination precedes liability. In terms of the relative weight each brief gives to the questions raised, we find, once again, that Vinson and the EEOC are more consistent with each other than either is with the Meritor brief, both giving relatively greater weight to the two discrimination issues (taken together) than to liability.

12 In an anthropological sense, "[t]he presumption of absolute knowledge . . . assumes the utter irrelevance of the observer's own context" (Herzfeld 14). Context-dependency is, rather, linked to lived life and in this sense to a "restricted code" that needs contextual cues to be read. Context-dependency is thus a descriptive condition unamenable to generating prescriptives. Totalizing approaches, by contrast, find the "unrestricted codes" of decontextualized experience, that is, the realm of "meaning" as opposed to "events," open to the development of master narrative prescriptives.

13 "Figural" is not used here in the sense in which Lyotard uses it - that is, as "an unspeakable other" (Readings xxxi), but, rather, in the psychoanalytic sense of a "smoothed" conscious statement emerging from a background of the multiple unconscious (see Spence Narrative).

14 Baker asserts the importance of new games, posing the need for ensuring equal access to common stakes (which she identifies as information or knowledge) out of which new games emerge and not observing rules of existing dominant games but continuously working at the limits to invent new moves, new rules, and new games (588589, 594).

Cornell takes the position that women need an idiom that does not yet exist, one that must be "invented" as it is "discovered" or they can only be described as victims (that is, not players in the play of language games). Not only must new interpretations of moves ("legal standards" in her view) be allowed but new moves as well, consistent with certain rules (rules characteristic of the new idiom). Given the lack of consensus on female identity (Cornell rejects the prospect of identifying women with the "is" of sex or motherhood), she poses the prospect of replacing a pre-given reality with a particular legal view (the harm produced by gender hierarchy) as the context for the new idiom's rule (668-670).

15 Here, asymmetrical power relations are assumed and constructions do not have to show unequal treatment. The prima facie case already having been made, unwelcomeness is assumed and the perspective is automatically that of the victim. The burden is on the defendant under the theory that the workplace is a male hunting ground, a protected game preserve in which the rules of the game are male sexual access to the workplace and the target is the sexual object (Estrich, "Sex at Work" 832-843; see also, Mackinnon Sexual, Feminism, Toward, Only Words).

16 The issues of "voluntary" and "consensual" as they relate to hostile environment can be resolved in the context of the event described by considering that no one "volunteers" to be harmed. A counter-intuitive notion, the idea of harassment being voluntary can only be treated as more prejudicial than probative, that is, intended to create a potentially "pornographic" image of a woman. If one concedes that a hostile environment provides the context in which the harassing action takes place, voluntariness is clearly a conditioned effect and not a cause of the action. Moreover, merely because one consents, it does not follow that one is not "harmed" by an action, whether that consent is described as having acceded, having failed to resist, having been imposed, or having been accepted. (See Estrich "Sex at Work"; Mackinnon Sexual)

17 Estrich (Real Rape, "Sex at Work") identifies the standards for consent and resistance used in rape cases as the doctrinal parents of unwelcomness required in quid pro quo and hostile environment cases.

18 Chamallas ("Feminist") implicates such considerations as separate but equal approaches, blaming the victim, protected groups, the victim's perspective, the essentialism of stereotypes, false consciousness, inequality, and individual experience as potentially informed by the experience of race law. Harris has much less of a literal fix on these issues in a postmodern critique that argues for what Chamallas considers "categories that are tentative, relational, and unstable" (142).

19 Justice Stevens filed a concurring opinion, as did Justice Marshall whose concurrence was joined by Justices Brennan, Blackmun, and Stevens.

20 In the EEOC brief, as well, we find obfuscated an analogy between sex and race that would incorporate racial protections into sexual discrimination cases and reduce the ambiguity of sexual issues through clarifying comparisons to race issues. "Natural" sexual activities that are personal and individual are by implication considered unlike "invidious" social and group distinctions made by race. The area of private and consensual activities thereby removed from the public light, Title VII protections would no longer be implicated whereas intrusion on individual privacy would. (On the implication for First Amendment issues, see Gerard.)


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Myrsiades is an associate professor of English at West Chester University. She has co-authored two books on Greek folk theater; a work on guerrilla theater, Cultural Representation in Historical Resistance, will be published in 1998.
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