Voices/Voces in the Borderlands: A Colloquy on Re/constructing Identities in Re/constructed Legal Spaces


VOICES I VOCES IN THE
BORDERLANDS: A COLLOQUY ON
REICONSTRUCTING IDENTITIES IN
REICONSTRUCTED LEGAL SPACES
Melissa Harrison* and Margaret E. Montoya**

"The Mind Knowing Doesn't Always Make
A Difference That Matters. "'

I. INTRODUCTION

A. "Reading" Popular Culture

While derided as the bane of the Western intellectual tradition and a
threat to the most noble of human achievements,2 multiculturalism (or
postmodernism dressed in grunge) has settled with a shrug into the pages
of the Spiegel catalog. Listen, as we are cajoled that:

* Associate Professor of Law, University of Montana School of Law; A.B. The
University of the South 1978; J.D. Vanderbilt University School of Law 1984. I wish
to thank my co-author, Margaret Montoya, for an amazing year working in tandem.
I wish to thank my husband Pete Larson, and my sons, Will and Ben Harrison, for an
amazing life.

** Associate Professor of Law, University of New Mexico School of Law. A.B.
San Diego State University 1972; J.D. Harvard Law School 1978. My public thanks
to Melissa Harrison for having listened, shared, and struggled. My family-Charles,
Chuck, Diana and Alejandra-gives me everyday lessons in feeling-thought.

My "portion" of this Article is dedicated to Frank Baca.

We wish to thank Martha Albertson Fineman and Marcia Sells for giving us the
opportunity to present the first draft of this Article at the November 1994 Feminist
Theory Workshop at Columbia University School of Law. This Article has benefited
from the comments to one or both of us of Bari Burke, Bob Chang, Bill Corbett,
Richard Delgado, Cynthia Ford, Tara Ford, Antoinette Sedillo Lopez, Kathleen
Magone, Alfred Mathewson, J. Michael Norwood, Sharon Rush, Ann Scales, Rodney
Smith, Scott Taylor, Carl Tobias, Sally Weaver and Christine Zuni. Special thanks to
our legal librarian Gordon Russell and to Bruce Sneddon and Charlotte Wilmerton for
superb assistance.

The quote is from Sarah Williams, infra note 31, at 74.
See Dinesh D'Sousa, The End of Racism: Principles for a Multiracial Society

(1995).



Columbia Journal of Gender and Law

[I]n a perfect world, it would be out to tell anyone what's in.
In the meantime, a few ideas seemed important to us.
Diversity. A home should be as surprising as its owner.
Integrity. There's a reason some things are called classics.
Efficiency. If it isn't smart, it's stupid. Other than that, our
advice is to do what you want. Be who you are. Make yourself
at home.3

In a section called "News," prominent hues of browns and black are
set off by animal prints. The products "mix contemporary style with
primitive overtones. 4 Page after page of discreetly encoded descriptions:
"The 'Genoa' chair . . . . the Kalibo floor screen . . . the Mexican lion
vase ... the zephyr chair ... the Cagayan floor lamp," and a "vase with
an attitude: [E]xotic! "5

We are exhorted to "[r]aise some cane in the library. "6 But relax, it's
only a coy play on words, the "cane" being referred to is in "[tihe
'Plantation' chair, originally designed during British Colonial times to enjoy
an evening's viewing of the sky, ' "stir[ring] up images of a tropical
retreat. "

In the next section, the words "NEW SIMPLICITY"9 are overlaid
with "Good design knows no boundaries . . . . ,,.o This visually mixed
message is followed by: "The shape of things to come . . . . " "Mixing
cultures is only natural .... "1i. "The freedom of neutrality . . . .,,

Then, new themes, are introduced: "Home Country" 4; "Americana.
An at-ease attitude. Freedom of expression. The more mixed, the better.
Where opportunities are endless."' 5  "The New Frontier. There's more
to Rustic than 'Cowboys and Indians.' Expand your horizons with ethnic
looks from around the world. '"6

Spiegel Catalog, Fall/Winter 1994, at 276.
Id. at 278, Item H.

5 Id. at 278, 286.
6 Id. at 292.

Id. at 292, Item D.
8 Id. at 292.
9 Id. at 328-29.
10 Id.
1 Id. at 330.
12 Id. at 332.
13 Id. at 334.
14 Id. at 336.
15 Id. at 337.
16 Id. at 352.

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Juxtapose Spiegel's celebratory excursion into cultural diversity with
the Ralph Lauren lay-outs running each Sunday in the New York Times
Magazine, depicting in-your-face scenes of money, privilege, and
apartheid. 7

"Plantations" and "colonies" cease being sites of enslavement,
oppression, and degradation and become instead bucolic and nostalgic
memories of sunset-colored retreats. The "primitive" and the "exotic" are
broken from their histories of subordination. The coded images and
mantras of the political Right: "Americana," "neutrality," "freedom of
expression," and "endless opportunities" are insouciantly juxtaposed with
"Diversity" and its hues of browns and black. Cultural and racial hybridity
with their "mixing of cultures" and "ethnic looks" are stripped of their
search and yearning for political and economic re/location and instead,
fetishized, commodified, and re-defined as "natural," "better," and "at
ease."

Advertising squeezes out old meanings of words, injecting them with
new associations. Commercial-speak suctions out pejorative representations
replacing them with acceptable and seductive ones. Subtly but inexorably,
the language of commerce affects perceptions, alters attitudes, and reframes
understanding. Capitalism's need to expand markets and increase sales
coopts images, vocabulary, and historical experience. This cooptation can
be critiqued from the perspective of the Right as well as that of
Progressives. To the dismay of the Right, diversity is portrayed as elegant,
chic, and desirable; to the dismay of the Progressives, it is historically
transparent and ideologically neutral.

Advertising and other forms of popular culture also form, deform,
reform, and conform identities. Take, for example, an episode from
"Saturday Night Live" that aired on October 21, 1994. Dana Carvey is
shown impersonating President George Bush. Carvey's image of Bush is
of a weak, whining, and inarticulate man with awkward hand gestures and
confusing facial expressions. The "real" George Bush is next shown
critiquing this comedic impersonation of himself. A split screen then shows
both Dana Carvey and George Bush. Bush can be heard whining about the
inexactness of Carvey's "Bush" even as he exaggerates his gestures and
intonations to match Carvey's. Can we draw some broader meaning when
a comedian constructs a negative identity of the President of the United
States, arguably the most powerful person on the planet, who responds to
this mimicry by challenging the authenticity of the representation only to
then assume the invented identity before a television audience of millions?

17 New York Times Magazine. See also Ralph Lauren, The Home Catalog, Fall
1995.

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Are all identities up for grabs, the identities of politicians available to
lampooners just as those of ethnics and mestizas are available to Madison
Avenue? Is it useful to search for the relationship between popular
culture's construction of identities and its creation of desire and meaning,
or the construction of identities of studied peoples by ethnographers, or,
more directly for our purposes, the construction of identities of clients by
lawyers during the process of legal re/presentation? How does legal
discourse resemble and emulate commercial-speak in masking historic forms
of subordination? Like Spiegel's manipulation of plantation imagery and
signification, does legal discourse also supplant the odious with invented
memories, replacing and displacing the obvious with the oblique? Or,
unlike George Bush, do lawyers obfuscate by eschewing the playful and the
foolish, abjuring any lampooning of their tools, techniques, and
vocabularies? Do such questions bear on the lawyer's tasks of speaking for
clients and representing them? Isn't a lawyer's or law student's
understanding of the dynamism of racial identities and the attendant
complexity of client relations informed as much, if not more, by popular
culture as by critical theory? Can we link the "reading" of popular culture
and the deciphering of its encoded messages with the lawyer's need to
"read" the culture of her client?

Students enter law school steeped in messages such as these,
multilayered messages in which racist and neocolonialist"s attitudes merge
into the everyday familiarity of objects offered for sale, messages in which
the real blends with the ersatz. Yet, upon entering law school, students are
confronted with legal materials and legal language that seem curiously
ignorant of the rhetoric and the vocabularies of contemporary public speech.
Were the nineteenth century colonizers, who packed their plantation cane
chairs with their imperialism, and headed for Africa, India, Mexico, and the
so-called Wild West, to appear today, we fear that many law school classes

's We use both the language of subordination/domination and the neocolonialist

terminology associated with critiques of imperialism. We do so to draw attention to the
connections between domestic and global forms of subjugation. Our academic
objectives are consistent with those Peter McLaren has identified:

One of the crucial issues for criticalists working in the field of literacy is to
rethink the conditions of the possibility for the subaltern to speak, to escape the
labyrinth of subjugation, to make critical counterstatements against the logic of
domination that informs the dominant white supremacist ideology of patriarchal
capitalism and to transform the ideological precepts that make up the
"imponderability" of everyday life where social relations of power and
privilege are naturalized throughout the curriculum.

Peter McLaren & Kris Gutierrez, Pedagogies of Dissent and Transformation: A
Dialogue About Postmodernity, Social Context, and the Politics of Literacy, 3 Int. J.
Educ. Reform 327, 333 (1994).

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would be astonishingly familiar to them. The materials we use and the
concepts we employ might be virtually identical to those of their time.
Looking around, they would likely be surprised to see women and people
with skin in shades of tan to black. But looking down at their casebook
they would recognize the measured words and the syllogistic patterns of the
appellate judges, writing in what some would describe as expository
English, the language of the profession perceived as "normal" in its
monolinguality, monoculturalism, and transparent in its representation of
reality.'9 Looking forward, this imaginary colonizer might even see a
woman of color teaching the class. We posit that all too frequently she or
we or I would sound alarmingly like our predecessors from a bygone era.

Just compare the imagery, vocabulary, playfulness, and cultural
diversity deployed by popular culture with those that typify traditional legal
pedagogy. The schism between the discourse and semiotics of the
marketplace and television, (to say nothing of hip-hop videos or rap lyrics)
and our classrooms contribute to the persistent and pernicious separation
between the personal and professional lives of the lawyer. We model this
separation for students in and out of the classroom, inculcating them with
what we already know to be an unsatisfying and ineffective way of leading
our lives.

We recognize that students have diverse backgrounds and perspectives,
as well as varying stakes in cultural debates, and this makes our
pedagogical tasks immensely more interesting and more challenging as well.
This Article is written with law professors and, ultimately, students in
mind. Many students, and our daughters and sons, are already considerably
adept at deciphering popular culture. We seek to make them our allies in
constructing pedagogical spaces where together we can attenuate the assaults
on our sensibilities and our spirits by fashioning new individual and
collective identities within new myths, narratives, and ethics.

"9 The concepts of transparency of language and the right use of reason have been
explored by Jane Flax. She writes:

The knowledge acquired from the right use of reason will be "True"-for
example, such knowledge will represent something real and unchanging
(universal) about our minds and/or the structure of the natural world . ...
Language is in some sense transparent. Just as the right use of reason can
result in knowledge that represents the real, so, too, language is merely the
medium in and through which such representation occurs. There is a
correspondence between "word" and "thing" (as between a correct truth claim
and the real). Objects are not linguistically (or socially) constructed, they are
merely made present to consciousness by naming and the right use of language.

Jane Flax, Postmodernism and Gender Relations in Feminist Theory, 12 Signs 621, 624
(1986-87) (emphasis in text).

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B. The Borderlands as Metaphor

We begin by using the concepts of essentialism and anti-essentialism
as our theoretical backdrop. We then examine the borderland theories of
Gloria Anzaldfa, Peter McLaren, D. Emily Hicks, and others as a way out
of this dichotomy. We offer the borderlands as a liminal space, a space
filled with potentiality. For some students it may represent a place to
invent and construct new identities, or to re/member lost ones. 2  For
other students the borderlands is a way station, a periphery where the
norms of the dominant culture can be learned and practiced, but also a
place that can be left behind in order to return to one's home community.
Students' awareness of the borderlands as a liminal space can assist them
not only in the exploration of their own identities but also in their legal
representation of clients.

We discuss strategies of transculturation mapped along "literal and
figurative borders where a 'person' is crisscrossed by multiple
identities. 2' Border identities inspire our imagination and lure us with the
potentiality of "a plural self, one that thrives on ambiguity and multiplicity,
on affirmation of differences, not on polarized and polarizing notions of
identity, culture, race, or gender. "' The notion of border identities, we
suggest, is responsive to the universalizing concerns identified by Professors
Elizabeth Spelmanz and Angela Harris,24 and at the same time allows us
to form strategic alliances on the basis of characteristics such as gender.

The border metaphor, with its imbedded notions of multiple
nationalities, cultures, and languages, motivates us to consider
methodologies drawn from ethnography and literary translation. We refine
the analysis undertaken by James Boyd White,' Clark Cunningham,'

20 The literary and cultural critic Homi Bhabha has pointed out that remembering

is "never a quiet act of introspection or retrospection. [Rather, it is] a painful
re/membering, a putting together of the dismembered past to make sense of the trauma
of the present." Tejaswini Niranjana, Siting Translation: History, Post-Structuralism,
and the Colonial Context 172 (1992).

21 Renato Rosaldo, Culture and Truth: The Remaking of Social Analysis 216
(1993). For an opposing view of borderlands and cross-cultural relationships, where
border crossings are evil, corrupting, and polluting, see the movie "A Touch of Evil,"
Orson Wells, dir. 1958.

22 Frangoise Lionnet, Autobiographical Voices: Race, Gender, Self-Portraiture 16
(1989).

23 Elizabeth V. Spelman, Inessential Woman: Problems of Exclusion in Feminist
Thought (1988). See infra text accompanying notes 71-72, 91-95.

24 Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L.
Rev. 581 (1990). See infra Part II for a discussion of essentialism in feminist legal
theory.

5 James B. White, Justice as Translation: An Essay in Cultural and Legal

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and others by reading their legal scholarship against that of feminist
anthropologists and translators who express serious misgivings about the
colonialist legacy of ethnography and translation. We propose the concept
of the Malinche Paradox to problematize the roles of Outsiders who seek
to deploy the discursive tools and tactics of the dominant culture, only to
produce unexpected and, at times, unwanted outcomes.

Our purpose is to use interdisciplinary materials to identify techniques
that can be used to ameliorate our own and the student's "cultural
dyslexia," a term meaning "the inability to read the alien, cultural worlds
of other people."27  In this way we can maintain fluidity and
connectedness in our personal and professional identities, as well as a
synergy between our scholarship and our pedagogical agendas. We
explicitly propose two techniques with which to diminish cultural dyslexia:
slow-motion reading' and resonance.29  Slow-motion reading is a
methodology proposed decades ago by the French feminist lawyer and
literary critic, Claudine Herrmann, as a way of using our personal
experience to interpret what we read, a way of listening to our internal
voice interrogate the text. The concept of resonance was developed by the
Norwegian anthropologist Unni Wikan to increase cross-cultural
understanding and appreciation by applying both feeling and thought; this
concept of "feeling-thought" is one she borrows from the Balinese.3'

C. Enactments as Method.

This Article attempts to model slow-motion reading and resonance by
incorporating personal narrative into the text. We try to listen closely to
one another and to understand with our hearts and our heads. We write this
Article in this way to honor the varying and conflicting roles we each
assume, and to bring coherence to the work we perform each day, in and
out of the home by suturing together the public and private domains in our
scholarship. We seek to break the silence within the academy that

Criticism (1990).
26 Clark D. Cunningham, The Lawyer as Translator, Representation as Text:

Towards an Ethnography of Legal Discourse, 77 Cornell L. Rev. 1298 (1992).
27 Gisli Pdlsson, Introduction: Beyond Boundaries, in Beyond Boundaries:

Understanding, Translation and Anthropological Discourse 1, 23 (Gisli Pdlsson ed.,
1993) [hereinafter Beyond Boundaries].

28 See Nancy Kline, Translator's Introduction to Claudine Herrmann, The Tongue
Snatchers at xi-xvi (Nancy Kline trans., 1989).

29 See Unni Wikan, Beyond Boundaries: The Power of Resonance, in Beyond
Boundaries, supra note 27, at 184, 188-191.

30 Id. at 189.

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enshrouds our family relations and work at home, to bridge the psychic
distance between our front doors and the law school door, and to embroider
our scholarship with the experience gleaned from our home lives. We try
to make ourselves heard through different voices, the disembodied voices
that characterize the stances of objectivity and neutrality of expository
writing, the voice written in the "I" when we are telling our individual
stories, and the voices that move between the "I" and the "we" when we are
reviewing the collaboration that resulted in this Article. We share our
stories in order to bring alive the notion that essentialism can cabin our
thinking and circumscribe our comprehension of our own experiences as
well as delude us into concluding that the experiences of others are like our
own.

In stating our goals, we make several claims. First, we claim it is a
good thing to seek to help oneself and one's students enter those particular
spaces known as the "borderlands." Second, we make a claim that "we"
share this goal. We assert that a bilingual Latina from New Mexico and an
Anglo woman originally from the deep South can, ever mindful of our
differences, collaborate on this particular project. Third, we claim that
these insights and concepts can be transformed into particular skills which
can be useful to law students. We assert that translation lessons from
ethnography, language theory, feminist theory, and postmodernism can help
students represent clients with whom they differ.

We borrowed our Article's opening epigram "The mind knowing
doesn't always make a difference that matters." from Professor Sarah
Williams.3 Her observation, reminds us not only of the futility of relying
on our intellect, but also of the persistence we must show in acquiring
multicultural competence. "Feeling-thought," we posit, in agreement with
Professor Wikan,32 and not just "mind-knowing" can help us listen to and
learn from each other, students, and our clients about different ways of
reading the worlds around us.

The two of us met in the academy after taking very different journeys
and starting from very different places. Margaret, a bilingual Latina from
northern New Mexico, and her immediate family experienced the mobility
made possible by the educational, social, and economic fissures that created
a Latino middle class after World War II. Her mediocre undergraduate
schooling through five state colleges in two states was capped by law school
at Harvard. Margaret wears fuchsia, cobalt, and purple shoes that telegram
multilingual messages. Melissa, an Anglo from the deep South, enjoyed a

31 Sarah Williams, Abjection and Anthropological Praxis, 66 Anthropological Q.
67, 74 (1993).

32 See Wikan, supra note 29, at 202-204.

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middle class upbringing. She attended The University of the South
(Sewanee), a genteel and socially conservative Southern college and then
Vanderbilt, a New South, corporate-oriented law school. Melissa wears
black leather flats, shoes that whisper different signals.

Researching and writing this Article has provided the two of us with
the opportunity to examine issues, ideas, and tactics collaboratively by
paying careful attention to our differing positions.33 Doing so, we face
once again the contingency of experience.

mm:34  Melissa and I began this Article in an unknowing way.
She visited my law school during the 1994-95 academic year. I
learned before she arrived that she had written a paper on law
and feminism using the narrative form.3" It was recommended
to me because I too have written using autobiographical
narrative form.36 Soon after we met, we exchanged articles. I
cried as I read the stories, hers and her students'. I read her
self-disclosures about her feelings, her vulnerabilities, and her
pain, wondering if she could have told me the things she has
allowed me and others to read about her. I wonder about this,
knowing that there are admissions about myself in my writing
that I could not easily have shared with my colleagues.

Melissa and I talk about our children; we talk often and we
talk in detail. There is reciprocity and symmetry in what we
share. We tell each other about our good days and bad days.

3 "Positionality" defines gender, race, class and other aspects of identity as
markers of relational "positions" rather than essential qualities. The validity of
knowledge is enhanced when it includes an acknowledgement of the knower's specific
position because contextual and relational factors, while not fixed, are crucial for
defining identities. Frances A. Maher, and Mary Kay Tetrault, Frames of Positionality:
Constructing Meaningful Dialogues about Gender and Race, 66 Anthropological Q. 118
(1993). See also Katherine Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829,
880 (1990).

34 Throughout this Article, mm introduces Margaret Montoya's narrative.
31 Melissa Harrison, A Time of "Passionate Learning": Using Feminism, Law &

Literature to Create a Learning Community, 60 Tenn. L. Rev. 393 (1993).
36 Margaret E. Montoya, MAscaras, Trenzas Y Grefias: Un/Masking the Self

While Un/Braiding Latina Stories and Legal Discourse, 17 Harv. Women's L.J. 185
(1994).

17 See Eva Hoffman, Lost in Translation: A Life in a New Language (1989) for
another story about the exploration of "subjectivities" through a friendship between a
Polish emigre and Ivy league "Americans." Hoffman writes:

My American Friends ... share so many assumptions that are quite invisible
to them, precisely because they're shared. These are assumptions about the
most fundamental human transactions, subcutaneous beliefs, which lie just
below the stratum of political opinion or overt ideology: about how much
"space," physical or psychological, we need to give each other, about how

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About mothering successes, mothering excesses, and mothering
doubts.

Our small talk is about clothes, hair, weight, age, our
periods, exercising, and not exercising. Sometimes we talk about
politics, books, travel.

By the time we had agreed to try to work together, we had
laid a foundation. We resolved to try to talk meaningfully about
Difference. We began in a contradictory fashion, but then this
was to be an undertaking filled with ambiguity and
contradictions, by spending the better part of a day talking about
how we were similar. Looking back, emphasizing how we were
"the same" was a choice we each appear to have made. We
were still very tentative with one another; the relationship
couldn't yet bear the weight of a discussion about our
differences. Such discussions came about because of this joint
work, and the work itself moved us to where we could, and
indeed had to, discuss Difference as well as our differences.

mh:38  Margaret and I both tell stories, and part of our bond
is that we have told them to one another. We tell stories both in
our work and in our private lives. That is a way in which we
link the two worlds. It is a way to bring coherence to our lives.
Our storytelling is an integral part of our relationship. We could
not have a relationship were we not self-disclosing persons.

Our stories remind us of our commonality and our
positionality.39  We share the fact that we tell stories. The
difference in our stories shows our positionality. We have told
each other stories of segregation. Margaret tells the story of how
her parents could not ride the "white" bus but had to ride the
"Mexican" bus to and from school in southern New Mexico.4

much "control" is desirable, about what is private and what public, about how
much interest in another person's affairs is sympathy and how much
interference, about what's a pretty face or a handsome body, about what we're
allowed to poke fun at and what we have to revere, about how much we need
to hide in order to reveal ourselves. To remain outside such common
agreements is to remain outside reality itself-and if I'm not to risk a mild
cultural schizophrenia, I have to make a shift in the innermost ways. I have to
translate myself. But if I'm to achieve this without becoming assimilated-that
is, absorbed-by my new world, the translation has to be careful, the turns of
the psyche unforced. To mouth foreign terms without incorporating their
meanings is to risk being bowdlerized. A true translation proceeds by the
motions of understanding and sympathy; it happens by slow increments,
sentence by sentence, phrase by phrase.

Id. at 210-11.
38 Throughout this Article, mh introduces Melissa Harrison's narrative.
9 For an explanation on positionality see infra text accompanying notes 73-77.
0 For the historical context for an expanded form of this story see Margaret E.

Montoya, Bordered Identities, Law & Soc'y Assn. Anthology (forthcoming).

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I tell the story of when I was a little girl going to visit my
grandmother in Birmingham, Alabama, and stopping at a gas
station where there were "colored" and "white" water fountains.
My story is of living until I was ten years old in a small town in
Alabama where there were no African-Americans because the
townspeople boasted that any "n ---- s" who tried to come into the
town would be "run off." My story is of admitting fear when
groups of young men of color got on the subway when I was
living in New York City and of sometimes moving out of the
subway car to avoid them. Margaret's story is of having white
people move out of the subway car when she and an African-
American male friend got on the subway when they were both
law students at Harvard.

We are positioned differently vis-a-vis race, and I am in the
privileged position. But we are not always positioned that way.
In other circumstances we share privilege. We are both
heterosexual and are learning how our privilege operates vis-a-
vis our lesbian and gay friends and colleagues. We are both
privileged by our current economic situation and by our
professional positions and our educational opportunities. In
addition, we are both able-bodied.

One of the most important common bonds we share is that
we are both feminists" and it is in that struggle to live as
feminists in our workplace and in our personal lives that we also
share stories. Margaret tells about her daughters, and how to
teach them that it is appropriate for girls to be assertive and
aggressive. I tell the story of my gentle, six year old son who got
beaten up on the playground by the more aggressive boys; and
how I cry for him because his gentleness is something I value so
much and yet I fear that it will cause him pain as he grows older
because he may not be as rough and tough as the dominant
culture requires. I tell the story of what I refer to as my moment
of greatest success as a feminist mom when my son asked, "Mom,
why did God forget to give boys vaginas?"

41 There are differences in how women of color and white women view and
identify with feminism. See infra text accompanying notes 70-72. For one example
of Latina feminism see Montoya, supra note 36.

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II. Anti/Essentialism and the Borderlands

A. Legal Feminism and AntilEssentialism.

We find the concept of borderlands useful in thinking about
essentialism and anti-essentialism because the very concept challenges the
idea of a single perspective. A borderland can refer to the actual physical
border between two geographic entities. However, we refer to psychic
borderlands defined by Gloria Anzaldtia as "physically present wherever
two or more cultures edge each other, where people of different races
occupy the same territory, where under, lower, middle and upper classes
touch, where the space between two individuals shrinks with intimacy. "42
D. Emily Hicks defines "border writing" as that which "emphasizes the
differences in reference codes between two or more cultures and depicts,
therefore, a kind of realism that approaches the experience of border
crossers, those who live in a bilingual, bicultural, biconceptual reality. "43

Peter McLaren defines "border identities" as "created out of empathy
for others by means of a passionate connection through difference. Such
a connection is furthered by a narrative imagination which enables critical
linkages to be made between our own stories and the stories of cultural
others." '  He theorizes that "[blorder identities are identities in which
readers and narrators are both one and the Other in the sense that the
border crosser is both 'self and 'other."' 45 This awareness of the Other
and of the blurring of identities is dislocating. This may mean that we look
for conflict rather than consensus." This may mean "that we need to
learn to theorize, to deliberate, to make collective decisions, to resolve
disputes, in new, probably time-consuming and awkward ways."'47 The

42 Gloria Anzaldtia, Borderlands, La Frontera: The New Mestiza, at Preface
(1987).

"3 D. Emily Hicks, Deterritorialization and Border Writing, in Ethics/Aesthetics:
Post-Modern Positions 47, 49 (Robert Merrill ed., 1988).

44 Peter McLaren, Critical Pedagogy and Predatory Culture: Oppositional Politics
in a Postmodern Era 106 (1995).

"5 Peter McLaren, Border Disputes: Multicultural Narrative, Identity Formation,
and Critical Pedagogy in Postmodern America, in Naming Silenced Lives: Personal
Narratives and the Process of Educational Change 201, 221 (Daniel McLaughlin &
William G. Tierney eds., 1993) (quoting Hicks, supra note 43, at 52).

4 Martha Minow, Beyond Universality, 1989 U. Chi. Legal F. 115, 132-33
(1989).

41 Jennifer Nedelsky, The Challenges of Multiplicity, 89 Mich. L. Rev. 1591, 1608
(1991) (book review).

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full implications of being constantly aware of difference is that we treat
diversity as central, not incidental.

What does it mean to live in the borderlands or with a border
consciousness? It feels extremely disruptive and insecure. "[T]he abject
is that which 'beckons the subject ever closer to its edge'.
Edges-boundaries, borderlands, margins-are places where a plethora of
postmodernist and feminist writers and writers of color engaged with
comparative cultural studies remember, reconstruct and construct anew the
imaginative power of cultures and identities. "I Thus, abjection is about
boundary loss. As Gloria Anzaldfia says:

Borders are set up to define the places that are safe and unsafe,
to distinguish us from them. A border is a dividing line, a
narrow strip along a steep edge. A borderland is a vague and
undetermined place created by the emotional residue of an
unnatural boundary. It is in a constant state of transition.49

It is not a comfortable space, but there are "certain joys."5" According to
Anzaldfia:

Living on borders and in margins, keeping intact one's shifting
and multiple identity and integrity, is like trying to swim in a
new element, an "alien" element. There is an exhilaration in
being a participant in the further evolution of humankind, in
being "worked" on. I have the sense that certain "faculties"-not
just in me but in every border resident, colored or non-
colored-and dormant areas of consciousness are being activated,
awakened ... not comfortable but home.'

Thus, the borderlands are a place of abjection and exhilaration; a place
where the person is "crisscrossed by multiple identities,, 5 2 where we are
a "plural self, one that thrives on ambiguity and multiplicity."53

The image of borderlands-with its implicit recognition of both
difference and commonality-illuminates a tension for feminists: how do
we "attempt to talk about all women in terms of something we have in
common [while not] undermin[ing] attempts to . . . [acknowledge] the
differences among us, and vice versa?"'' How can we make sure that

4 Williams, supra note 31, at 68.
4 Anzaldfia, supra note 42, at 3 (emphasis in text).
so Id. at Preface.

51 Id.
52 Rosaldo, supra note 21, at 216.
13 Lionnet, supra note 22, at 16.
" See Spelman, supra note 23, at 3.

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voices are not silenced and that we do not assume to speak inappropriately
for others while claiming that social critiques of patriarchy can be made?

We propose borderlands as a way to theorize and dissolve the tension
between essentialism and anti-essentialism. Essentialism, in the general
philosophical sense, is "understood as a belief in the real, true essence of
things, the invariable and fixed properties which define the 'whatness' of
a given entity."5 5  The category "woman" has been used by men to
essentialize women's nature and then as the starting point of, and
justification for, the oppression of women. Constructionism, on the other
hand, insists that essence itself is an historical construction, not a naturally
occurring phenomenon.56  Constructionists, for example, insist that
"woman" is a category created by society, not an immutable essence.

In a different, but related sense, the term "gender essentialism" has
been used to critique the practice of some feminists who have described
women's experience as unchanging across "race, class, sexual orientation,
and other realities of experience." '57 This critique asserts that first men,
and then women, of privilege have "erase[d] or appropriate[d] the
experiences of those unlike themselves." 58

Most, if not all, feminist theorists consider themselves constructionists
in the philosophical sense. Very few believe that woman is an immutable
essence which exists metaphysically outside of historical construction.59

Many feminist theorists share the critique that gender essentialism has
operated to privilege the voices of white, middle class, educated,
heterosexual women and to silence the voices of women of color, lesbians,
and the disabled. However, these theorists disagree in the emphasis they
place on difference and the extent to which difference limits the truth claims
one can make.

The paradox for feminist theorists is that some form of essentialism
(viewed in the most general sense of identifying commonalities) is necessary
for a critique of unjust social structures. Unless we can speak of and for
groups of people, we can never move beyond the results of individual
actions to address social, economic, and political oppression.

55 Diana Fuss, Essentially Speaking: Feminism, Nature and Difference, at xi
(1989).

56 Id. at 2.

5 See Harris, supra note 24, at 585.
58 Judith Resnik, Ambivalence: The Resiliency of Legal Culture in the United

States, 45 Stan. L. Rev. 1525, 1538 (1993); see also Judith Resnik, Visible on
"Women's Issues," Iowa L. Rev. 41, 48 (1991).

" One example is Robin West, who posits that women share an essence in their
biological ability to have children and this connects them and sets them apart from men.
See Robin West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1 (1988).

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Martha Nussbaum seeks to reclaim essentialism for feminists by
positing "internalist essentialism" as a way to resolve this paradox.
Internalist essentialism is grounded in human experience and is an
historically sensitive account of the most basic human needs and human
functions "in terms of which human life is defined."' We need some
form of essentialism, according to Nussbaum, for compassion and respect
"can have their home only within a view that recognizes a determinate
conception of the human being. "61 "[Clompassion . . . require[s] the
belief in a common humanity." It is "internalist" because it does not
depend on an outside metaphysical foundation. In other words, essences do
not exist outside of historical circumstances. Internalist essentialism focuses
on human functions because once one identifies the important human
functions, one is in a position to critique whether social and political
systems are attending adequately to those functions. "Are they giving
people what they need in order to be capable of functioning in all these
human ways? ' 62 Nussbaum argues that these human functions should be
defined as vaguely as possible in order to be as inclusive as possible.63

o Martha C. Nussbaum, Human Functioning and Social Justice: In Defense of
Aristotelian Essentialism, 20 Pol. Theory 202, 214 (1992).

61 Id. at 237.
62 Id.
63 Id. at 215. Nussbaum's list of Basic Human Functional Capabilities is as

follows:
1. Being able to live to the end of a complete human life, as far as is possible;
not dying prematurely, or before one's life is so reduced as to be not worth
living.
2. Being able to have good health, to be adequately nourished, [and] to have
adequate shelter; having opportunities for sexual satisfaction; being able to
move from place to place.
3. Being able to avoid unnecessary and nonbeneficial pain and to have
pleasurable experiences.
4. Being able to use the five senses; being able to imagine, to think, and to
reason.
5. Being able to have attachments to things and persons outside ourselves, to
love those who love and care for us, to grieve at their absence, in general, to
love, grieve, [and] to feel longing and gratitude.
6. Being able to form a conception of the good and to engage in critical
reflection about the planning of one's own life.
7. Being able to live for and with others, to recognize and show concern for
other human beings, to engage in various forms of familial and social
interaction.
8. Being able to live with concern for and in relation to animals, plants, and
the world of nature.
9. Being able to laugh, to play, to enjoy recreational activities.
10. Being able to live one's on [sic] life and nobody else's; being able to live
one's own life in one's very own surroundings and context.

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Moreover, she argues that this "thick, vague" form of essentialism "does
not believe in saying anything at all without rich and full information,
gathered not so much from detached study as from the voices of those who
live the ways of life in question. "'

We do not grasp the significance of suffering or lack or impediment
unless and until we set it in the context of a view of what it is for a human
being to flourish."65 Martha Nussbaum's position can be categorized as
one which seeks to stress the commonality of humans, in opposition to
extreme relativism.6

We find Nussbaum's "thick, vague" conception of essentialism useful
to articulate a broad baseline of what is human in order to challenge social
institutions. We must combine her conception of "internalist essentialism"
with her exhortation to demand an inquiry into differences in order that the
general good be appropriately realized in specific cases. That searching
analysis of difference can be informed by the works of Angela Harris,
Kimberl6 Crenshaw, and Elizabeth Spelman.

Angela Harris' work suggests a move beyond essentialism toward
"tmultiple consciousness," which is defined as "the recognition of a self that
is multiplicitous, not unitary; the recognition that differences are always
relational rather than inherent; and the recognition that wholeness and
commonality are acts of will and creativity, rather than passive
discovery."67 Commonality is not something we possess in an essential
womanness but is something we create. In Harris' words, "bridges between
women are built, not found .... [W]hat will truly bring ... us together
is the use of effort and imagination to root out and examine our differences,
for only the recognition of women's differences can ultimately bring [the]
feminist movement to strength. "68 Even though Harris criticizes
essentialism and categorical thinking, she realizes that some categorization
is necessary for social change. She states:

Even a jurisprudence based on multiple consciousness must
categorize ... . [or] there can be no moral responsibility or social
change. My suggestion is only that we make our categories
explicitly tentative, relational, and unstable, and that to do so is

Id. at 222. According to Nussbaum, "[t]he Aristotelian essentialist claims that a life
that lacks any one of these, no matter what else it has, will be lacking in humanness.
So it would be reasonable to take these things as a focus for concern, in asking how
public policy can promote the good of human beings." Id.

64 Id. at 225.
6 Id. at 239.
66 Id. at 232.
67 Harris, supra note 24, at 608.
68 Id. at 615.

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all the more important in a discipline like law, where abstraction
and "frozen" categories are the norm. Avoiding gender
essentialism need not mean that the Holocaust and a corncob are
the same.69

mm: Sometimes our inculcation in essentialistic thinking
reveals itself in unpredictable ways. When I was completing
undergraduate studies at San Diego State University and
applying to law school, I was required to get the signature of my
department chair on one of the applications. I had an
interdisciplinary major in History, Economics and Political
Science and approached the chair of one of the departments for
his signature. I didn't know him and he didn't know me. I stood
before him as he sat behind his desk. I handed him my
application as I asked for his signature. " won't do anything to
help a Mexican get into law school, "he said to me. Confused by
the ambiguity of categorizations, I corrected him, "Oh, I'm an
American citizen." You see, I thought he was concerned with my
citizenship status. "I don't care what kind of a Mexican you
are." The epithet was now crystal clear to both of us.

Kimberl6 Crenshaw and Elizabeth Spelman also caution against
essentialism because black women experience oppression in a different way
than white women. Crenshaw claims black women sometimes experience
discrimination in ways similar to Black men. Sometimes they experience
discrimination not as the sum of race and sex, but as a different category,
Black women.7' Spelman emphasizes that black women are not black and
women. They are "black women."7 Thus, according to Crenshaw and
Spelman, women of color experience sex discrimination in a way that is
qualitatively-and not just quantitatively-different. 7

The works of Katharine Bartlett and Joan Williams exhort us to be
constantly aware of the shifting self, the different positions we all occupy.
Bartlett addresses the essentialism paradox through the concept of
"positionality," a "stance toward knowledge that takes into account the
contingency of knowledge claims while allowing for a concept of truth or

69 Id. at 586.
70 Kimberld Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black

Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist
Politics, 1989 U. Chi. Legal F. 139, 149 (1989).

" "You cannot separate the parts of women of color like they were pieces of a
tootsie roll or colored beads." Spelman, supra note 23, at 15.

72 Spelman recognizes the need for some type of categorization. Spelman says:
"I am not saying that we ought never to think about or refer to women 'as women' or
to men 'as men.' I am only insisting that whenever we do that we remember which
women and which men we are thinking about." Id. at 186.

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objectivity that can sustain an agenda for meaningful reform.""
According to Bartlett, "[tihe positional stance acknowledges the existence
of empirical truths, values and knowledge, and also their contingency. It
thereby provides a basis for feminist commitment and political action, but
views these commitments as provisional and subject to further critical
evaluation . . . . "" For Bartlett, truth is determined by one's position in
particular involvements and relationships. She states, "[t]hese relationships,
not some essential or innate characteristics of the individual, define the
individual's perspective and provide the location for meaning, identity, and
political commitment. "'I

Williams explicitly uses the insights of postmodemism to argue for the
importance of context. Williams' theory is similar to Bartlett's in that she
uses "context" in much the same way as Bartlett uses "positionality."
According to Williams, a post-modem approach focuses on the fact that an
individual can have multiple viewpoints.76 She says that:

race and gender may prove determinative in some particular
context, . . . [but there are no essential characteristics which]
determine how a given individual will react in every situation.

This post-modem approach starts from the notion of a
fragmented and shifting self .... A post-modem approach to
difference highlights that each person is embedded in a matrix of
social and psychological factors that interact in different contexts.
Essentialism dissolves before the notion of a shifting, constantly
reconfigured self, shaped but not determined by membership in
sets of social categories that crystallize power relations in
America."

Both Williams and Bartlett locate descriptions of the self in the particularity
of peoples' lives. The self is not a category that is always the same, but
adapts and changes according to the "context" or "position" at a given time
and place. The combination of these insights, we believe, offers feminists
a way to critique social institutions with an awareness of difference that
matters.

We agree with Martha Nussbaum that there is a baseline commonality,
and we also agree with Martha Fineman on the necessity of collaboration
for social change. Fineman believes that the feminist task is to find

73 Bartlett, supra note 33, at 879.
74 Id. at 880.
75 Id.
76 Joan C. Williams, Dissolving the Sameness/Difference Debate: A Post-Modern

Path Beyond Essentialism in Feminist and Critical Race Theory, 1991 Duke L.J. 296,
299 (1991).

77 Id. at 307-08.

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common ground and work together "to challenge male-defined and [male-]
controlled gendered notions of law that systematically disadvantage
women.""8 Fineman uses the concept "gendered lives" to distinguish
women's lives from men's lives in our culture. She states that

many women experience society in ways significantly different
from the ways that men experience society. I believe certain real
or potential experiences can be described as constituting the basis
for a feminist development of the concept of "gendered life."
These experiences lead many women to develop a perspective
qualitatively different from what is reflected in dominant legal
ideology. This is not to assert that all women think alike or have
identical experiences. My position is based on experiential, not
essential differences.79

Fineman believes that women can discover enough in common through this
concept of gendered lives to work together. She acknowledges that there
are differences among women and she sees those differences as positive.'
She cautions that such differences must not divide women.8' For
Fineman, the dominant goal is to change male-defined notions of law-a
goal she thinks all women can share. Fineman's conception of gendered
lives identifies an "essence" that is socially, rather than biologically
constructed. Because the goal is to change male-dominated and -defined
legal institutions, the differences between women should be sublimated in
some contexts, even if they objectively exist, in order that the movement
will not be diluted. Social change is the objective, so emphasizing
differences between women threatens to hinder the work.

B. Collaborating in the Borderlands.

Richard Delgado challenges the notion that difference from men is the
dominant paradigm and that women can have the same goals. In Rodrigo's
Sixth Chronicle, he posits this as relational essentialism, which he defines
as:

the idea that Black women, for example, must join white women,
but not because both groups have the very same experience,
perspective, needs, and agendas, ... [but] because they stand on

78 Martha Albertson Fineman, Feminist Theory in Law: The Difference It Makes,
2 Colum. J. Gender & L. 1, 23 (1992).

" Martha Albertson Fineman, Challenging Law, Establishing Differences: The
Future of Feminist Legal Scholarship, 42 Fla. L. Rev. 25, 37 (1990).

10 Id. at 38-39.
81 Id. at 40-41.

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the same footing with respect to patriarchy. In this respect, they
are essentially the same, that is, oppressed and in need of
relief8 2

Rodrigo (or actually his partner Giannina) argues against "relational
essentialism."

[I]t is always a... mistake ... [for the outsider to join with the]
more empowered group, even for strategic reasons.

[T]he price of strategic essentialism is not only that you get
away from your agenda and your heart-of-hearts goals. You'll
develop what Antonio Gramsci calls false consciousness. You'll
forget who you are and what your original goals and
commitments were. Goals, personal identities, and loyalties are
socially constructed. If we work and struggle with people-no
matter how well-intentioned-whose perspectives, culture, and
agenda are different from ours, we will eventually change.

mm: A collaboration between Melissa and myself raises
questions about whether women of color should collaborate with
their white female colleagues. Richard Delgado has warned that
such efforts may result in the dilution of multiple
consciousness."4 Strategic alliances, he cautions, can make us
lose our direction, veering off from where we want to go, and
worse yet, lead to false consciousness.8"

What am I to do? For some fifteen years I have been
involved in an interracial and interethnic intellectual alliance.
I am married to a man who is bilingual (English and Spanish)
and bicultural ("American" and Mexican) and he is white. While
my marriage has many other dimensions, there is no question
that it is a principal site for the development of my multiple
identities; it is where I try out ideas, explore tactics, and mend
my soul after skirmishes with racism, sexism, and every Otherism.
And so, am I more at risk in collaborating with him over decades
than with Melissa over months?

But let us look at Rodrigo's background He is described as
'African-American by birth and [by] ancestry,6 yet he is more
than that as the child of an African-American father and an
Italian-national mother." Arguably, his mixed racial heritage

82 Richard Delgado, Rodrigo's Sixth Chronicle: Intersections, Essences, and the
Dilemma of Social Reform, 68 N.Y.U. L. Rev. 639, 649 (1993).

83 Id. at 652-53.

4 Id. at 660-61.
5 Id. at 652-53.

86 Id. at 639-40.
87 Id. at 640 n.2.

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evidences itself in his choice of a partner, Giannina, an Italian
woman. 8

8

How are we to understand Rodrigo's appeals to a type of
Outsider solidarity that is inconsistent with his ancestral realities
as well as his own personal behavior? Isn't our task to claim
our mixed ancestry--both chromosomal and intellectual? That
is, many of us who self-identify as people of color are mestizas
or mestizos, people of mixed racial backgrounds.9

Moreover, all of us are intellectual mestizas or mestizos.90
My ideas, as those of other scholars engaged in critical legal
analysis, have been spawned by Karl Marx, Antonio Gramsc,
Martin Luther King Jr., Malcolm X, Paolo Freire, Albert Memm,
Catherine MacKinnon, Gloria Steinem, Derrick Bell, Richard
Delgado, bell hooks, Patricia Williams, Mari Matsuda, Gloria
Anzald a, Angela Harris, and Peter McLaren. And this
necessarily compacted list doesn't begin to include those
novelists, artists, or musicians of every hue and of both genders
who also have, to varying degrees, birthed my identities.

Originally, those whose ideas had most salience for me were
white men, then black men, white women, women of color, and
most recently, I have learned much from gays and lesbians.
From my perspective, there has been a temporal progression as
different groups have broken into public discourse. Today, Ifind
compelling arguments from critical scholars, writers, and
commentators who self-identify with a variety of names and
emphasize differing characteristics. This is one of the lessons I
choose to draw from the essentialism/anti-essentialism debates.

But it all becomes very circular because my conclusions may
be the product offalse consciousness. By this I mean that I take
Professor Delgado's warnings very seriously. Perhaps the only
way I can guard against the pitfalls of engaging in crosscultural
activities is to engage with those who are willing to invest the
time and to take the psychic risks requiredfor the inter-reflexivity
that we try to illustrate in this Article.

mh: How do white, Anglo women attempt to step out of that
emotionally secure space where we believe that everyone is just
like us? First of all, is it possible? While it may not be possible
to become the Other or even to understand the Other, we can
attempt to know the lives of Others; we can acquire knowledge
that helps us to see multiplicity.

88 Id. at 640 n.3. Although Delgado never clarifies Giannina's ethnicity, based on
Rodrigo's background and travels, we assume she is Italian. Also, we presume that
Delgado is encoding ethnic information in his choice of a name for his character.

89 See Montoya, supra note 36, at 216.

90 Id.

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Elizabeth Spelman argues that:

[T]he acquisition of such knowledge requires a kind of
apprenticeship; and making oneself an apprentice to someone is
at odds with having political, social, and economic power over
them.

[We must come to know women from whom we
differ .. . . But ... our recognition of this need must be
matched by an awareness of how the legacies of our privilege
appear in the ways we may try to satisfy that need . . .

mh: In other words, for a white, privileged woman to acquire
knowledge about others so as not to essentialize, we (the "we" I use
here refers to other white or Anglo women) must constantly interrogate
ourselves, examine our motives, and deconstruct our relationships with
those who agree to allow us to apprentice ourselves to them. We must
examine whether our motive is a desire for internal growth.

Maria Lugones doubts that self-growth will be the result of this work.
She says, "The severe self-disruption that the.task entails should place a
doubt in anyone who takes the task seriously about her possibilities of
coming out of the task whole, with a self that is not as fragile as the selves
of those who have been the victims of racism. "9

The white, Anglo woman must examine whether she undertakes this
work out of a sense of obligation or "white guilt." Lugones condemns this
motive because it puts the "white/Anglo in a morally self-righteous position
that is inappropriate. You are active, we are passive. We become the
vehicles of your own redemption. "I This motive is patronizing as it
focuses on the self-growth of the white or Anglo. The white or Anglo
woman must question whether she does this out of a desire to make herself
relevant, i.e., to grab center stage. "The centerstage problem occurs
because dominant group members are already accustomed to being on
centerstage. "' Lugones has said that the white or Anglo should become
"unintrusive, unimportant, patient to the point of tears, while at the same

91 Spelman, supra note 23, at 178, 185.
9 Maria C. Lugones & Elizabeth V. Spelman, Have We Got a Theory for You!

Feminist Theory, Cultural Imperialism and the Demand for "The Woman's Voice," in
Women and Values: Readings in Recent Feminist Philosophy 19, 29 (Marilyn Pearsall
ed., 2d ed. 1993).

93 Id.
I Trina Grillo & Stephanie M. Wildman, Obscuring the Importance of Race: The

Implication of Making Comparisons Between Racism and Sexism (or Other-isms), 1991
Duke L.J. 397, 401 (1991).

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time open to learning any possible lessons."95 Grillo and Wildman have
suggested that there is a place for whites to speak. "Part of the privilege
of whiteness is the freedom not to think about race. Whites need to reject
this privilege and to recognize and speak about their role in the racial
hierarchy. Yet whites cannot speak validly for people of color, but only
about their own experiences as whites. "I Gloria Anzaldia believes that
there must be a role for whites or Anglos in this work. She acknowledges
that some of her Latina/o colleagues don't want to work with whites but she
believes that whites must be allowed to be the allies of people of color.'
I think that the appropriate role is as listener to and learner "in a respectful
way98 from men and women of color and as speakers to other whites.'

mh: My effort in this collaboration is to attempt to acquire
knowledge of the perspective of others, even if that is only
partially possible, and to speak out about my own role in the
struggle, being careful not to speak for my collaborators and
friends. Nor can I speak to them about how they must live their
own lives. Doris Lessing recounts an experience which I view as
a cautionary tale to Western women of privilege. She recalls a
"very dramatic little scene" during one of her visits back to
Zimbabwe after 25 years of banishment as a "prohibited
immigrant"for her criticism of apartheid: "There were a couple
of American feminists, expertly dressed, lecturing a bunch of
women who were raising kids on a level of about $70 to $80 a
month in American money, about their sex lives, how to raise
their children, how to treat their husbands." The feminists struck
her as latter-day ideological imperialists, liberated most of all,
she says, from "a sense of the ridiculous. ",o

I hope I still have a sense of the ridiculous which will keep
me in a listening rather than a preaching mode. Of course, the
act of writing about my experience involves a paradox. I am
here taking center stage talking about not taking center stage.

9 Lugones & Spelman, supra note 92, at 29.
9 Grillo & Wildman, supra note 94, at 405. See also Margery Wolf, A Thrice-

Told Tale: Feminism, Postmodernism, and Ethnographic Responsibility 122 (1992)
("To be suspicious [of one's position as a member of the dominant group] is good. To
allow it to silence one is something else.").

9 Anzaldtia, supra note 42, at 85.
98 Gloria Anzaldda says that "whites could allow themselves to ... learn from us

in a respectful way." Id. at 68.
9 For an example of a white, Anglo woman listening to learn and learning to

listen, see Frances L. Ansley, A Civil Rights Agenda for the Year 2000: Confessions
of an Identity Politician, 59 Tenn. L. Rev. 593 (1992).

11 Diana J. Schemo, At the Guggenheim With Doris Lessing: A Portrait
Unwinds, As in Life, N.Y. Times, Nov. 2, 1994, at Cl, CIO.

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Recognizing that paradox, I can only constantly interrogate
myself as I try to do the work

When the first draft of this Article was done, it wdis glaringly
apparent that there was more narrative from Margaret than from
myself This imbalance seemed wrong to both of us. At first, I
explained to Margaret, and to myself, that my lack of self-
disclosure was because I thought no one was interested in
hearing what I termed my "white or Anglo angst." In fact, I had
written narrative and discarded it because it felt so self-absorbed
and full of "white guilt." I was forced to realize, however, that
this explanation was only partially true. I now realize that
silence is full of power. The right to silence is the right of the
privileged. Part of white privilege is about not having to notice
or write about the story of one's whiteness as whiteness-as race.

In addition, by only seeing myself as white and privileged
and Margaret as an oppressedperson of color, I essentialized her
and forced her to do most of the work The work of transforming
power structures is my work too, and it will not get done if I am
silent.

Margaret and I have disclosed to each other our 'fears of
being found out." Margaret's fear is that she will be found out
as "not belonging in the white world."

mm: Belonging is such an ambiguous word. Ihave elsewhere
written about the psychic risk of the Outsider, the dramaturgical
strategies for staying in role when one is bridging culures. '0
I have a strong reaction against the notion that I "belong" in the
white world in the sense that it's my proper place. In a real
way, I am not at home in either culture, the white culture of the
US. or that of Mexico. 2

mh: My fear is of being found out as racist. My fear is that
my image of myself as an enlightened liberal will be destroyed.
I am greatly indebted to Sharon Rush and to Margaret for their
insights on this matter. I confided this fear of being racist which
had me stymied in work on this Article. I remember Sharon
saying to me, "well, you are racist-now what do you do about
it?"

So, what do I do about it? I seek to acquire knowledge of
the lives of other people, people from whom I am different,
people whose lives I do not know. When I was an Assistant
District Attorney in Brooklyn, the stories I heard were from the
victims of crime. The victims of crime in Brooklyn, as elsewhere,
are primarily poor people of color. I remember two women in
particular. Both were the victims of domestic violence. The first

'0' See Montoya, supra note 36, at 197-98.
102 Id. at 217-19.

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had been stabbed in the lung by her partner. It was the second
time he had stabbed her. She refused to voluntarily appear
before the grand jury so that he could be indicted for aggravated
assault. Finally, I had her forcibly brought into my office. My
job was to convince her that her partner should be indicted and
should go to jail. I was 29 years old and had been a practicing
lawyer for one year. I remember saying to her, "Look, I'm not
trying to tell you how to live your life-but being stabbed is so
serious, how can you stay?" She looked at me and said, "I have
no place else to go. He supports me and my children. He is
good to my children. I went with him in the first place to get
away from my father who was worse."

I have told that story for several years when I lecture on
domestic violence to show why I no longer ask, "Why didn't you
leave?" But recently, I have realized what I didn't ask about,
what I didn't hear in her story. I have always thought of this
woman's life as a paradigm of unremitting misery and
victimhood. But that is not all there is to her story. I did not
ask her about her children and her love for them. Nor did I hear
her story of courage and love. Her love for her children could
have been something which sustained her, which was important
enough to even sacrifice her physical integrity. Wouldn't I have
been a better lawyer if I had listened in a way that she became
a real person to me?

The other story is of another woman of color who had been
attacked with an ice pick by her partner. He had not injured her.
She had fought him off. She wanted him prosecuted She said
to me, "You know he's beat me up before, I can handle that, I
just hit him back. But an ice pick, I can't handle that, he's got
to go." Her life was grim. She was poor. She had a partner
who beat her. In many ways, she could be seen as a victim of
life. But she was one of the strongest, bravest women I have ever
met. I still remember how she radiated strength.

No one is just a victim and no two victims are just the same.
Everyone moves in and out of selves which are reconfigured and
repositioned every day. I can use the insights ofpostmodernism
and anti-essentialism to really hear about the lives of others-to
practice slow-motion listening, to seek out the opportunity to
know-to teach my students how to do the same.

Why do we seek to do this work? The answer is that we believe it to
be the right thing to do. Claiming both that we share enough in common
to work together, and that we can claim the rightness of the goal is, in
itself, essentializing. 3 However, we should not, and cannot, speak of
an "'essential' wom[a]n's experience . . . isolated and described
independently of race, class, sexual orientation, and other realities of

103 Delgado, supra note 82, at 647.

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experience. '"" We believe that the tendency toward gender essentialism
has privileged the voices of white, middle-class women and silenced the
voices of women of color, lesbians, differently-abled, and poor women.'l°
We find in postmodernism a useful way to describe the constructedness of
women's lives and the shifting of the subject, the life on the border, the
abyss at the edge that is a necessary result of seeing in a multiplicitous way.
We believe that it is possible to see, teach, and learn in a multicultural way.
We also believe that it will be hard work, both for ourselves and our
students. "It takes practice to make a habit of glimpsing the perspectives
of others."

mh: One day Margaret and I were looking at a list of past
recipients of a particular award. Our eyes slowly moved down
the list together. Finally, I say, "Only one woman." Margaret
says "Only one Latino or Latina." I admit that I don't look for
Latinos or Latinas. I look for women. Margaret says, "I look
for both." Two days later, she hands me a list of participants for
a symposium. I see plenty of women's names. I nod. She looks
at me and says "Only one Latina." I hadn't looked for Latinas
again. It takes practice. "[T]he mind knowing doesn't always
make a difference that matters. W07

Awareness of the borderlands can help students interact with a wide
range of clients; some of whom may be very different from the students
themselves. The concept of borderlands is useful because it challenges the
idea of a single perspective. Students can resist essentialism by being
constantly aware of different cultures, classes, genders, races, and sexual
orientations inhabiting the same space. The borderlands exhort students to
be constantly aware of difference. It promotes better lawyering by
encourageing "empathy for others by means of a passionate connection
through difference."108 It enables students and lawyers to make "critical
linkages" between their "stories and the stories of cultural others."'
After proposing the borderlands as a construct to enable one to resist
essentialism, the next task is to fashion specific techniques which can help
students to bring the borderlands into their lawyering.

104 Harris, supra note 24, at 585.
105 We wish to acknowledge that all such lists usually leave someone out and do

not recognize the multiplicity of people's lives. For example, some women are both
poor and differently-abled while others are both lesbian and women of color.

"o Martha Minow, The Supreme Court, 1986 Term, Forward: Justice
Engendered, 101 Harv. L. Rev. 10, 79 (1987).

1o1 Williams, supra note 31, at 74.
101 McLaren, supra note 44, at 106.
109 Id.

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Ill. Interdisciplinary Discourses on Anti-Essentialism

A. Can We Speak for I Represent AnOther?

While the lawyer speaks for the client, the goal of translation is
not for lawyer and client to "speak with one voice." Rather, the
goal is for the lawyer to position the client's voice within the
legal proceeding, to evoke rather than re-present the client's
narratives." 0

Speaking on behalf of another is an important aspect of lawyering. In
a variety of venues, lawyers are expected to speak for their clients. In
adversarial dispute resolution, for example, the lawyer's speaking for the
client is at the heart of the advocacy. But, can we successfully speak for
another? Or, more importantly for purposes of this Article, can we speak
for an Other while being mindful of the lessons of the essentialism debates?

In this section we examine questions being raised within other
disciplines about essentialism and anti-essentialism. To do so, we begin by
examining the legal scholarship that integrates translation and ethnographic
techniques into lawyering practices. Then, we listen to feminists,
phenomenologists, ethnographers, and translators who have questioned the
ability of one person to speak for another, particularly when the speaker is
situated within the hierarchical structures of the academy or the legal
system, and is speaking about persons who do not share the speaker's
characteristics of race, class, sexual orientation, gender, language, or
nationality. To reiterate, we are using these characteristics as proxies for
certain life experiences that result in some loosely defined collective
perspective, as markers of positionality."'

The role of the translator offers insights into, the lawyer/client
relationship and into the lawyer's task of translating the client's story into
legal parlance." 2  In 1990, James Boyd White"3 wrote his much

"o Christopher P. Gilkerson, Poverty Law Narratives: The Critical Practice and
Theory of Receiving and Translating Client Stories, 43 Hastings L.J. 861, 916-17
(1992).

".. See supra note 33.
112 See Margaret E. Montoya, Law and Language: Image, Integration and

Innovation, 7 Berkeley La Raza L.J. 1 (1994).
13 White is Hart Wright Professor of Law, Professor of English Language and

Literature and Adjunct Professor of Classical Studies at The University of Michigan.
See James Boyd White, Translation as a Mode of Thought, 77 Cornell L. Rev. 1388
(1992).

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acclaimed book, Justice as Translation, in which, in exhorting lawyers to
employ the practice of translation, he challenged them/us:

to be a certain sort of person, with a certain attitude, ready to act
out of fidelity to the text in constantly new contexts . .
challeng[ing] the formulations by which the power of one person
(or a group) over the lives of another in the private sphere is
justified or made to seem natural, by languages that assert their
own unquestioned validity. It is the genius of the law to provide
a place in which unheard voices can be heard and responded to;
it is our task as lawyers to realize this possibility) 4

Given White's interdisciplinary orientation, his book undertakes to
correlate a certain view of language with a corresponding view of the law.
He begins by describing two views of language, one that is "transparent or
neutral, merely a way of pointing to something outside of itself.""' 5 An
alternative mode of thinking about language is:

as a repertoire of forms of action and of life. Every utterance
has meanings beyond the purely intellectual-meanings that are,
just to begin the list of possibilities, political, ethical, cultural,
aesthetic, social, and psychological in character-for, whether we
know it or not, our every utterance is a way of being and acting
in the world." 6

White then links this 'integrative" 7 approach towards language with a
view of law "as a 'culture of argument"" 8 and,

as a branch of rhetoric ... for through its forms of language and
of life the law constitutes a world of meaning and action: it
creates a set of actors and speakers and offers them possibilities
for meaningful speech and action that would not otherwise exist;
in so doing it establishes and maintains a community, defined by
its practices of language. At every stage the law is in this sense
an ethical and political activity and should be understood and
judged as such.

"l White, supra note 25, at 267.
"t Id. at ix; see also Flax, supra note 19.
116 White, supra note 25, at xi.

"I White describes the theme of the book as "'intellectual integration': the heart
of it lies in making texts (and communities) in which place is given not merely to one,
but to a variety of languages and voices." Id. at xiv.

Id. at xiii.
19 Id. at xiv.

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Translation, according to White, is a "useful way of thinking and
talking about excellence in law,""'2 a way "forcing us to respect the
other-the other language, the other person, the other text.'1'2 But even
as Professor White recognizes the potential that translation practices have
for refraining the relationship between the lawyer and her client, he
describes the difficulty of "carrying over" the meaning from one text to a
new one articulated in the language of the translator/lawyer. White's book
elucidates why it isn't possible to "say" in one language what has been
"said" in another."a He explains,

our languages shape what we say and what we mean, what we
see and what we experience; we are always talking in inner or
outer speech; there can be no "content" without language; and
language is neither a "code" nor a system of signification that
points to things external to it. 123

The lawyer in pursuit of techniques to enhance communications with
clients can learn from White's descriptions of language as well as from the
process of translation. 24 White also appropriately focuses us on the
potential of translation practices for helping lawyers to "provide a place in
which unheard voices can be heard and responded to.""2 White beckons
lawyers to hear the voices of the dispossessed, the subordinated.

Professor Clark Cunningham,"2 responds to White by seeking to
bring cultural differences to bear on the translation undertaking,
Cunningham provides an expanded example of translation and ethnographic
practices as applied to the representation of an African-American client.
Cunningham, in the role of clinical teacher, supervises two white male

20 Id. at xvii.
121 Id.
122 Id. at 253.
123 Id. at 254.
124 See Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993).

Drawing on the work of White, Professor Lawrence Lessig provides an extensive
analysis of the practice of translation in constitutional interpretation and the search for
"fidelity" of interpretation. He describes the translator's craft as the "result of two
distinct processes (two steps): first, the understanding of the material to be translated
(a process of finding familiarity), and second, the process under which sameness in
meaning is found (a process of finding equivalence)." Id. at 1194 (emphasis in text).
Opining that our understanding of textual interpretation will be enhanced with a greater
understanding of translation, Professor Lessig applies his construct to ten constitutional
issues, only to conclude pessimistically that finding fidelity in the interpretation of the
Constitution is no longer possible because of our lack of familiarity with the society that
created the document. Id. at 1263-68.

,' White, supra note 25, at 267.
126 Cunningham, supra note 26.

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students in their representation of a client charged with disorderly
conduct. 27

In framing his analysis, Cunningham proposes to expand the ethic of
translation developed by White by engrafting ethnographic techniques onto
it, further enhancing potential communication with the client. These
techniques involve recording what takes place during the representation of
a client and "treating these records as texts to be given close and repeated
reading with the goal of evoking the significance of what was said and done
• ..especially from the viewpoint of the client.""2a Cunningham is in
search of a methodology that "can be an effective way of recognizing the
difference of 'the other' and expanding imagination sufficiently to have
some understanding of the other's story."129 But he is in search of more
than a linguistic device or a trope to enhance our understanding of another's
experiences; his search is also epistemological, a way of knowing by using
one's experience to understand another's experiences. These two objectives
are separable for purposes of our analysis of how translation and
ethnographic techniques assist lawyers in understanding the stories of others
and in speaking on their behalf.

Early in his article, 3 ° Cunningham refers to the concept of "multiple
consciousness" as developed by Mari Matsuda 3' and Richard
Delgado'32 and by the Delgado/Stefancic "empathic fallacy" critique. 33

Multiple consciousness is explained by Professor Matsuda as "bifurcated
thinking, . . . [a] shifting back and forth between her consciousness as a
Third World person and the white consciousness required for. survival in
elite educational institutions.' 3 4  Matsuda states that multiple
consciousness is "a deliberate choice to see the world from the standpoint
of the oppressed. ,31 She does not confine the experience of multiple
consciousness to Outsiders: "That world is accessible to all of us."136

127 Id. at 1303-10.
2I Id. at 1301-02.

129 Id. at 1299.
130 Id. at 1302 n.14.

13' Mari Matsuda, When the First Quail Calls:. Multiple Consciousness as
Jurisprudential Method, 11 Women's Rts. L. Rep. 7 (1989).

132 Richard Delgado, When a Story Is Just a Story: Does Voice Really Matter?,
76 Va. L. Rev. 95 (1990); Richard Delgado, Storytelling for Oppositionists and Others:
A Plea for Narrative, 87 Mich. L. Rev. 2411, 2414 (1989)[hereinafter Storytelling].

133 Richard Delgado & Jean Stefancic, Failed Revolutions: Social Reform and the
Limits of Legal Imagination 4 (1994).

'3 Matsuda, supra note 131, at 8.
' Id. at 9.

136 Id.

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Empathic fallacy is the belief that:

we can enlarge our sympathies through linguistic means alone.
By exposing ourselves to ennobling narratives, we tell ourselves,
we can broaden our experience, deepen our empathy, and achieve
new levels of sensitivity and fellow feeling. We can, in short,
think, talk, read, and write our way out of bigotry and narrow-
mindedness out of our limitations of experience and
perspective. 137

Combining these two observations, if this world of the oppressed is to be
made accessible, we must rely on more than our cognition.

Cunningham posits that "the ethnographic method may provide a
similar insight into the worldview of those situated very differently, a way
of responding to the postmodern concern without being trapped within one's
subjectivity. '131 Cunningham is searching for a method that will provide
insight similar to that provided by the multiple consciousness of the
Outsider as well as for a method to overcome the empathic fallacy. He
seeks a method, as Delgado and Stefancic have written, "to surmount our
limitations of time, place, and culture, [to] transcend our own
situatedness,"1 39 and to be able to see the world at once through the eyes
of the dominated and through those of the subordinated.

But does ethnography, coupled with White's ethic of translation,
provide insight like that claimed by Outsiders, those who deploy multiple
consciousness? Does legal ethnography support Cunningham's claims or
hopes?' 4

We believe that the answer is both yes and no. Cunningham, like
White before him, interjects ethnographic techniques into legal practice.
We are persuaded that close and careful listening, coupled with scrutinized
and repeated readings of the client's story, can assist one in better
understanding the nuances of another's experience. On the other hand, we
think that Cunningham has not attended to his own situatedness or to the
role that experiential differences play in understanding another's stories and
in collaborating with the client about how to re-tell the story. He neglects
to consider that the reactions and the tasks for the Insider lawyer may be
different than those for the Outsider lawyer.

mm: Some cultural and historical context would make this
point from a different perspective. In the early sixteenth century,

1 Delgado & Stefancic, supra note 133, at 4-5.
138 Cunningham, supra note 26, at 1302 n.14.
139 Delgado & Stefancic, supra note 133, at 16.

'40 White, supra note 25, at 1388. Interestingly, when James Boyd White identifies
the six things he admires about Cunningham's article, this outcome is not among them.

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Hernan Cortds landed in the americas. He was met by Maya
and Tlazcala Peoples (known today because of a curious
misnaming as "Indians'). Cortis was presented with many gifts
including a group of young women. Before being given to Cortis
and his men, the women were baptized. One of the young
women, given the name Marina, knew at least two indigenous
languages (Nahuatl and Maya). Her value was quickly
recognized by Cortes and she was taken as his translator.
Because of her language ability, she quickly learned Spanish and
thus eliminated the need for multiple translators. She was known
as Doha Marina to the Spaniards, which was then translated as
Malintzin in Nahuatl and then mispronounced in Spanish as
Malinche.

In a painting done contemporaneously with the events,
Marina is shown translating for Cortis and a group of Tlaxcalan
nobles. The chronicler, Bernal Diaz, writes that "the Indians
called Cortes "Malinche" because of the inseparableness of the
capitdn and his Nahuatl interpreter. " 4'

Let us think about her for a moment. At the time she was
given to Cortis, she had already been given away on two other
occasions.'42 After Marina bore Cortis a son, he gave her to
one of his lieutenants with whom she had several children. She
was repeatedly treated as property, as chattel to be disposed of
at the whim of her owners. Nonetheless, it appears that she had
considerable latitude in her translation activities and provided
Cortis with information to allow the Spaniards to quell counter-
rebellions at great suffering to the Indians.

Today, La Malinche maintains a place of ambiguous
prominence in Mexico, revered by some but reviled by many.'43

Her name, which once included titles of respect in two languages
(Doha and -tzin), is now used by some as an epithet. Many
Mexicans see her as the betrayer of a hemisphere, a traitor to
her people and a collaborator with the conquistadores. Without
her or someone who served as language and cultural translator
for the Spaniards, Montezuma and the Aztecs could not have
been conquered

Dicen que los espaholes no hubieran conquistado Amirica
sin la Malinche. Traducci6n y traici6n estan enredados en la
mentalidad mexicana. Translation from the point of view of the
Mexican is embedded with betrayal. So, is la Malinche an
archetype or an historical antecedent? Are lawyers only modern-
day Cortis/Malinches subordinating the client/indigene? Is she

141 Frances Karttunen, Between Worlds: Interpreters, Guides and Survivors 9
(1994).

142 Id. at 4-5.
"I See generally Sandra Messinger Cypess, La Malinche in Mexican Literature:

From History to Myth (1991).

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godmother to those of us in the academy tentatively and
ambivalently engaged in language and cultural translations?
Does she peer over my shoulder with a knowing half-smile on her
face? How are we to understand her agency or lack of agency?
What does our understanding of her actions say to us about our
subjectification/subjugation and about how we participate in the
subjectification/subjugation of others?

According to his own analysis, Cunningham erred in his
representation'" of Dujon Johnson by disregarding information provided
by his client by conceptualizing the matter as a Fourth Amendment issue (a
"Terry-stop") rather than as a racial incident. 45 The client was repeatedly
denied respect-by the police troopers, by the judge who characterized the
charge of disturbing the peace as "an attitude ticket," and by his lawyers
who violated his story.'" Cunningham explains his rejection of the racial
aspects of the case in this manner:

The translation metaphor does, however, suggest why we were so
easily distracted. While one is speaking a language, its
limitations seem so natural that they are invisible. At the outset
of our representation, I seized upon the details of the frisk in the
police report in large part because I could talk about them easily
in legal language."'

Cunningham seems to be indicating that legal language, unlike other
languages, is unitary and singular. But, like other languages, "legal
language" constitutes even while it is constituted of, contingent upon, and
imbedded with the speaker's perspectives, biases, values, and
experiences-and is therefore as plural as all other languages.

How does the "native" lawyer come to the undertaking of legal
ethnography?'" The Trobriander identity-at least the identity/ies known

" Cunningham is evidently more directive in his supervision of clinical students
than most of us at the University of New Mexico. We believe it is critical to allow the
students to assume professional responsibility for their cases. As difficult as it is, we,
the clinical supervisors, try not to directly interact with clients, opposing counsel, or
judges.

145 Cunningham, supra note 26, at 1370-71.
'" Id., passim.
147 Id. at 1377.
148 The anthropologist Sarah Williams has written an ethnographic representation

which she calls "silhouettes, not representations of objective reality." The story
involves an academic meeting at which postmodern anthropological practice is being
discussed. At one point, a question is asked about who will read the paper being
presented:

[Tihe moderator interrupts and jokes about more Trobriand Islanders reading
Malinowski to determine who they are.

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through anthropological texts-is named into existence, is constructed by
Malinowski, the ethnographer extraordinaire. In much the same way, the
client's identity qua client emerges as the lawyer's construction. How
many of our clients would recognize their stories in the legal narratives we
construct for them? How many of our clients would recognize themselves
as we contruct them as clients?

"Would" an African-American (or another person of color) have
listened to the client from a different perspective than that of Cunningham
and deployed legal languages differently? "Would" an African-American
(or other person of color) have constructed an identity more consistent with
Dujon Johnson's views of himself? "Would" an African-American (or
other person of color) have recognized a different narrative in Johnson's
story, a narrative grounded in the police brutality and other policing
excesses that form the collective experience of communities of color?
"Could" an African-American (or other person of color) have heard and
thus accorded greater importance to Dujon Johnson's goals of vindicating
his name, honor, reputation, and dignity? But can we pose such questions
without finding ourselves in the analytical cul-de-sac of essentialism, backed
into a corner in which we are connecting cognitive and affective functions
with such fictions as "race?" But, in the final analysis, don't we have to
acknowledge that many African-Americans and other persons of color,
admittedly not all, would have heard resonances in Johnson's story that
were lost to Cunningham and even more likely lost to other, less
multiculturally competent, White persons? Isn't that the richest meaning of
diversity and the most persuasive justification for diversifying the profession
along racial and ethnic lines-that the collective life experiences that grow
out of "race" and skin color (or language or gender or sexual orientation or
physical and mental dis/abilities) are the wellspring for more nuanced legal
analyses, discourses and skills.

Anthony V. Alfieri has severely criticized Cunningham for "ignoring
the fact that discourse is intimately bound up in the negations of interpretive
violence: marginalization, subordination, and discipline . . . and

• ..Sitting in the seminar room, I see the student who is a Trobriand
Islander. Am I to envision this Trobriand Islander dangling another
anthropological similacrum . . . ? Or is the moderator being dangled by
Malinowski, who from his grave literally (that is, textually) does dangle 'the
Trobriand Islander?' . . . . The department is supposedly proud to be training
the first native Trobriand Islander anthropologist. Furthermore, this student's
principal adviser is a Malinowski expert. Is this would-be native anthropologist
of the Trobriand Islands reading the texts of Malinowski to determine his
identity? Or is he reading Malinowski to learn how anthropologists have
represented his culture? Is there a difference? Does it matter?

Williams, supra-note 31, at 71-72.

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overlook[ing] the tie connecting interpretive and material violence. ' 49
Alfieri chides Cunningham for failing to speak of "violence-the violence
of language, of translation, of representation, or of state agents.""0

mm: I consider Cunningham 's article a crucial addition to
our understanding of how lawyering replicates the subordination
experienced by clients, especially Outsider clients whose
experiences are likely to be disbelieved by Insider lawyers.
Cunningham's contribution is especially useful for those of us
who struggle to show students how privilege both masks and
manifests itself

Cunningham has failed, in my opinion, to account for the
situatedness of the Outsider lawyer. His analysis essentializes
not only the client, through his own admission, but also the
potential readers of his article. My relation to the undertaking
of translation is considerably different from that of the white
male who fully participates in, and is privileged by, the
majoritarian culture.

The translation of the story of an Outsider client by an
Outsider lawyer represents a complex inter- and intra-personal
negotiation between personal and universalized narratives. The
translation may be deemed successful or faithful when it connects
imbedded information about the client with that of the Outsider
lawyer.

Silencing of the Other is one of the ways in which
subordination is reproduced Although an Outsider in multiple
ways, I too participate in subordinating clients by silencing or
failing to understand their experiences. The Outsider lawyer is
often painfully aware of her own silence, of its connections to the
silences of her clients, and of her complicity in the silencing of
others in ways that are known and unknown to her.

I am calling this "La Malinche Paradox"--the impulse to
collaborate with the dominant culture, to use in Audre Lorde's
words "the Master's tools," to learn the oppressor's languages
out of a desire, at once, to rescue one's community, to save
oneself, to subvert the colonizer. Translationpractices, legal and
cultural, can be a form of resistance, but they are fraught with
pitfalls. La Malinche succeeded in her objective of safeguarding
her Tlazcala/Maya tribes from the imperialism of the Aztecs, only
to have the espaholes emerge as victorious with all indigenous
people in the hemisphere falling prey to them. Talk about wildly
chaotic results.

Any comparison between the translation activities of la
Malinche and those of the Outsider lawyer is bound to sound
hyperbolic. Nonetheless, the Outsider lawyer who is, at times, at

149 Anthony V. Alfieri, Stances, 77 Cornell L. Rev. 1233, 1240 (1992).
Iso Id.

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the periphery of the dominant culture can learn from the story of
la Malinche. Her story is a cautionary tale about deploying the
oppressor's discursive tools with their epistemological frames
because doing so is likely to result in unpredictable and often
unfortunate outcomes. Such practices are complex and chaotic,
but this does not mean that they are not orderly, understandable,
and highly useful. The juxtaposition of the concept of chaos with
that of order is deliberate. The Outsider lawyer, mindful of la
Malinche Paradox, must negotiate this ambiguity and
contradictoriness, looking for "local" order, some micro-
orderliness to ethnographic, translation, and lawyering practices
even though, at the "global" level, such practices may be chaotic,
nonlinear, and capable of producing unpredictable results.'5

Cunningham writes that Derrick Bell characterized the "'problem'
[faced by Dujon Johnson] as a very familiar one: [the] client got in trouble
simply because he was viewed as 'an uppity n- "'--. -152 However, the
fact that the Outsider lawyer recognizes the situation for what it is doesn't
necessarily mean that she can suitably translate this into legal language.
The "deference" that Cunningham writes about'53 operates to silence the
Outsider lawyer in unpredictable ways even as she undertakes to give voice
to her silenced clients. The silencing can be strategic, like when the
Outsider knows it's best to hold her tongue so that she too isn't thought
uppity to the disadvantage of the client. The silencing can also be enforced
from outside and be out of her control, as when silenced by prosecutors
who dismiss charges, thereby thwarting the opportunity for the uppity client
and her uppity lawyer to be heard. 'I

A different aspect of forced silencing and its companion loss of words
has been described by Claudine Herrmann. In her now-classic book Les
Voleuses de Langue [The Tongue Snatchers] published in 1976, she states
that women are oppressed through language and that those women who
desire to free themselves must "steal (or snatch)" language. She contends
that the

151 See Ilya Prigogine, Order Out of Chaos (1984); see generally Paul D.
Carrington, Butterfly Effects: The Possibilities of Law Teaching in a Democracy, 41
Duke L.J. 741 (1992); Andrew W. Hayes, An Introduction to Chaos and Law, 60
Univ. Mo. Kan. City L. Rev. 751 (1992).

152 Cunningham, supra note 26, at 1368.
153 Id. at 1379. "[T]he most potent form of microaggression is the long-established

American color-caste behavior described as 'deference', . . . the respectful yielding
exhibited by the Negroes in their contacts with whites." Id.

154 The reference is to the outcome in the Cunningham case in which the prosecutor
dismissed the case. Id. at 1328.

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woman who wants to become educated is forced to let a little
man grow inside of her .... But it takes enormous energy to let
a man who reasons as a man in the world of men cohabit, in the
depths of one's self, with a woman who refuses to abjure her
own judgments and uses them to gauge the alternatives proposed
to her.

The woman who makes this effort is necessarily schizoid.
* .. She knows how wide the gap is between what is lived and
what is expressed; she soon understands that the whole culture
has been colonized.

However, there is no choice; it is necessary to learn, and
with the tools at our disposal: a colonized body of language and
an adulterated language.'55

Herrmann's metaphor of the little man inside the educated woman is
essentialist, i.e., written from the point of view of a white woman as though
it encompasses the experience of all women; it thus fails to consider
characteristics other than gender with respect to both her educated woman
and her little man. 56 Such analyses can be criticized for being at best
only partially accurate because they ascribe excessive importance to
language of the dominant culture, while ignoring the power that resides in
the discourses of the subordinated, including their silences.

We should not, however, quickly discount the power of Herrmann's
metaphor and her point that public language has been created within a
context that excluded, devalued, and oppressed women of all backgrounds,
classes and colors.5 7 Her observation about the colonized quality of

"I5 Herrmann, supra note 28, at 6-7.
116 Herrmann's schizoid (but, we'd like to think, hermaphroditic) caricature is

consistent with the way some female legal scholars feel and with the pain women
students experience as they learn to think like lawyers. Female legal academics are at
times pressured to focus on "traditional" research topics using "conventional" discourse
or to teach "typical" classes or seminars with "tried and proven" pedagogy. Female
students can feel alien and alienated, unable to give voice in the classroom to the issues
of pressing concern to them and unwilling to engage in formulaic repartee about
decontextualized fact patterns that portray women and other Outsiders in uni-
dimensional and bigoted stereotypes. See Taunya L. Banks, Gender Bias in the
Classroom, 38 J. Legal Educ. 137 (1988); see also Harrison, supra note 35.

157 A different and more recent analysis of the gendered nature of encoded meaning
can be found in the work of sociolinguists who have demonstrated how conversational
styles characterized as primarily male or primarily female frequently result in misread
cues. Deborah Tannen and others have studied verbal and nonverbal aspects of
language and provided explanation for how dominance is actually created in interaction.

Tannen provides the following as specific examples of the way gender domination
is constructed through communication: women take the role of listener while men
assume the role of lecturer; women are inclined to avoid conflict and those who are
incapable of angry outbursts lose this aspect of power-wielding; and men interrupt
women expecting women to mount resistance. Deborah Tannen, Gender and Discourse

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language has validity with respect to how we speak about gender relations
and how we speak for ourselves.'58 It has even greater force when we
think about speaking for others. "You are led to reflect on how particular
translations become constructed. What gets lost, what is gained, what and
how altered, in the passage from one language to the next?"' 59

What is of salience as we consider the colonization of language is that
the client's story passes through a series of adulterated languages: from the
language of the story's origin to the lawyer's language to legal parlance.
Concepts such as the borderlands can help us as we speak for clients who
are situated differently than we are. The borderlands are where common
parlances and legal languages can be examined for their contamination by
subordinating influences.

Another progressive legal scholar, Christopher Gilkerson, employs
translation as a metaphor for lawyering, and specifically for receiving and
recomposing client stories in the context of a poverty law practice." 6

Gilkerson rejects both that the lawyer and client "speak with one voice" and
that the lawyer as translator acts as a "mere intermediary" between the
client and the legal system.' 6 ' "Instead," posits Gilkerson, "the lawyer
acts as facilitator, one who enables dialogue across lines of social difference
between the client, law, and legal decisionmaker . . .[by abandoning] her
formal role at strategic moments in order to establish connection and
understanding between clients and.decisionmakers. "162

Using a critical storytelling approach, Gilkerson writes with the
objective of weaving critical scholarship with poverty practice.'63 In
analyzing universalized legal narratives which mask the voices and

(1994).
In developing this analysis, Tannen takes issue with the idea that identifying

differences between women's and men's conversation styles "is synonymous with
ascribing those difference to women's 'essential' nature." Id. at 12. See also Anthony
Grey, Speaking of Sex: The Limits of Language (1993).

158 See Flax, supra note 19 at 632 ("[Texts] take on a life of their own or become
the world . . . as if the model human activity is literary criticism (or writing)."); see
also Delgado, Storytelling, supra note 132, at 2416-2435 (discussing the meaning of
stories); infra text accompanying note 205.

'5 Nicole Ward Jouve, White Woman Speaks with Forked Tongue 47 (1991).
160 Gilkerson, supra note 102. In acknowledging that his article is written with the

purpose of "engag[ing] and integrat[ing] various strands of critical literature in the
application of the translation concept," Gilkerson notes that "White has been criticized
for failing to account for and engage critical scholars who are currently writing about
and exploring perspectivity and contextualization." Id. at 915 n.220 (citing Sanford
Levinson, Conversing about Justice, 100 Yale L.J. 1855, 1873-75 (1991)).

161 Id. at 916-17.
162 Id. at 917.
163 Id. at 864-65.

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narratives of poor clients, Gilkerson focuses on how "legal narratives
control the 'storylines' of poor people, regulating their lives in
contradictory ways.""6 He examines how poor clients frame their stories
in order to win favor with lawyers. He asserts that their attempts are
weakened by the "lawyer's previously formed understanding of the client
and her world" which "acts as a cognitive and social barrier to receiving the
client's story."'" However, "[b]y adopt[ing] the client's perspective
when interpreting her story and by engaging the client in dialectical
interaction,"1  the lawyer can create discursive space for the client's
story. Gilkerson then posits two storytelling approaches: the traditional
lawyer fits the client's story into "whichever universalized legal narrative
the lawyer believes is advantageous for winning the case."' 67 Conversely,
the lawyer/translator is simultaneously "guided and constrained by the
client's narrative perspective. " 16

8

The ethic of storytelling proposed by Gilkerson "uphold[s] client
integrity . . .[by] fitting the client's story and legal claim into her ongoing
life narratives consistent with her normative history and present
identity."' 69  The goal of linking the client's integrity to legal theories
addresses both the instrumentalist goals of the legal system and the client's
narrative purpose.' 70

Clients' stories have the potential for destabilizing universalized legal
narratives, creating fissures in "preconceived explanations of experience
based on cultural stereotypes and assumptions and can begin to supplant
them with authentic accounts. "'7'

White, Cunningham, and Gilkerson collectively make a compelling
case that the crafts of translation and ethnography have promise for
sensitizing lawyers in their relations with clients. We agree with this aspect
of their claim. Yet legal scholars employing interdisciplinary techniques
taken from literary translation and ethnography fail to cite, and one must
conclude, to read, the feminist and subaltern literature critiquing and
problematizing ethnography and translation. A notable exception to this
pattern is Professor Naomi R. Cahn who has written about feminist

'14 Id. at 868.
165 Id.

166 Id.

167 Id. at 869.
168 Id.

1'9 Id. at 919.
170 Id.
171 Id. at 921.

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ethnographers' challenges to the traditional practices of the discipline.7 2

"Feminist ethnographers have challenged the neutrality of the researcher.
. . becom[ing] more aware of where they are located in their research and
of the 'cultural baggage' that conditions their study of 'others."" 73 Cahn
draws connections between this situation and that of lawyers

[who] only see, and present as legal claims, a limited portion of
their lives .... Moreover, inherent in listening to the stories of
others . . . is our own 'cultural baggage' that affects how we
listen, what we hear, who we believe, and what is told to us.
Some of us may be 'fluent' in several different cultures, but that
may only make the conflict more difficult. With which of our
cultural consciousnesses do we respond? And how do we know
when to become a participant, rather than an observer?'

Cahn's review of feminist scholarship focuses on issues of hierarchy
between ethnographers and their informants. "[I]nformants may be at risk
of 'manipulation and betrayal' by the ethnographer who has intruded into
their lives."'75 Nevertheless, Cahn notes, "some anthropologists believe
that true cooperation, overcoming of different power relationships and
distancing mechanisms, is possible . . . as long as the anthropologist
situates herself and confronts that situation with her 'subjects." ' 17 6 The
same can be achieved by lawyers, she asserts, who try to explore the power
relationships with their clients.'"

There is now, however, a substantial body of scholarship examining
the role of the translator and that of the ethnographer in the process of
colonization.'78 The quandary can be articulated as follows:

Since the practices of subjection/subjectification implicit in the
colonial enterprise operate not merely through the coercive
machinery of the imperial state but also through the discourses of
philosophy, history, anthropology, philology, linguistics, and
literary interpretation, the colonial "subject"-constructed through
technologies or practices of power/knowledge-is brought into

172 Naomi R. Cahn, Inconsistent Stories, 81 Georgetown L.J. 2475, 2515 (1993).
173 Id. at 2512-13.
174 Id. at 2514.
171 Id. at 2513.
176 Id. at 2514.
177 Id.
178 Eric Cheyfitz, The Poetics of Imperialism: Translation and Colonization from

the Tempest to Tarzan (1991); Niranjana, supra note 19; Karttunen, supra note 140;
Translating Slavery: Gender and Race in French Women's Writing, 1783-1823 (Doris
Y. Kasish & Francoise Massardier-Kenney eds., 1994).

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being within multile discourses and on multiple sites. One such
site is translation.' 

9

For women, especially women of color in the legal academy, scholarship
from disciplines other than law poses difficult questions because we are
forced to acknowledge the close similarity between progressive lawyering
and translation as both exhibit potential for reproducing subordination.

Concerns about the interrelationship of power and knowledge and
about asymmetries in power between the translator and the translated and
between the researcher and the subject, have been appearing with increasing
frequency in ethnographic literature."8 Feminist anthropologists involved
in fieldwork and others"' have problematized not only ethnographic
scholarship and its privileging of written over oral texts, but have focused
also on the luxury and privilege associated with the production of such
academic work in a context of global colonialism and political hegemony
maintained through racist and sexist violence. is2

Like the lawyer who relies on the client, the ethnographer depends on
disclosures from the research subject. But, as we borrow from
anthropological discourses, we should be mindful of categories such as the
"primitive," an analytical device that pervaded ethnography through the
colonial period into "decolonization."'8 3  Anthropology's links to
colonialism have been debated from the early 1960's until the present.'14

These intra-disciplinary concerns about the subordinating effects of
ethnography are not settled questions of the past. What is at stake here is

1 Niranjana, supra note 20, at 1-2 (footnote omitted).
's Ruth Behar, Translated Woman: Crossing the Border with Esperanza's Story

(1993); Wolf, supra note 95, at 118-23; Lila Abu-Lughod, Can There Be a Feminist
Ethnography?, 5 Women and Performance: A Journal of Feminist Theory 7, 25
(1990); Isabel Dyck, Ethnography: A Feminist Method?, 37 Canadian Geographer 52
(1993); Kim V.L. England, Getting Personal: Reflexivity, Positionality, and Feminist
Research, 46 Prof. Geographer 80 (1994); Deborah Gordon, Writing Culture, Writing
Feminism: The Poetics and Politics of Experimental Ethnography, Inscriptions, nos.
3/4 1988, at 7; Judith Stacey, Imagining Feminist Ethnography: A Response to
Elizabeth E. Wheatley, 17 Women's Stud. Int'l Forum 417 (1994); Kamala
Viswesweran, Defining Feminist Ethnography, Inscriptions Nos. 3/4 1988, at 27;
Elizabeth E. Wheatley, How Can We Engender Ethnography with a Feminist
Imagination?: A Rejoinder to Judith Stacey, 17 Women's Stud. Int'l Forum 403
(1994); Elizabeth E. Wheatley, Dances with Feminists: Truths, Dares, and
Ethnographic Stares, 17 Women's Stud. Int'l Forum 421 (1994).

181 See Rosaldo, supra note 21.
182 Deborah Gordon, The Unhappy Relationship of Feminism and Postmodernism

in Anthropology, 66 Anthropological Q. 109 (1993).
183 Beyond Boundaries, supra note 27, at 8-9.
'14 See Talal Asad, Anthropology and the Colonial Encounter (1973).

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the representation" of the colonized, who need to be produced in such
a manner as to justify neocolonial domination.18

Like ethnography, translation is imbedded with invisible power
relations. As has been noted by Lefevere and Bassnett,

in practice translation takes place on a vertical axis rather than a
horizontal one. In other words, either the translator regards the
task at hand as rising to the level of the source text and its author
or . . . the translator regards the target culture as greater and
effectively colonizes the source text."

Some translation critics have also used gender relations to describe the
relationship between the translator and the translated person and text (or,
for lawyering purposes, the client as text). Some use rape imagery, while
others use notions of "chastity" and "fidelity" to denote the patriarchal
character of the work.188

Concerns expressed from within various disciplines about the
asymmetries and the historicity of the practices, of translation and
ethnography should force us to confront our participation as lawyers in the
normalization of neocolonial practices. When you/we set out to borrow
insights and methodologies from other disciplines in order to increase
your/our understanding of Outsiders, it is incumbent upon you/us to seek
out the literature written from the Outsider perspective critiquing such
insights and methodologies. Are we likely to hear the occluded voices of
clients if we don't hear the voices of those speaking from inside the
academy saying that ethnography, translation, and law, perforce, are all
discourses and sites through which the neocolonial subject (as represented
by our clients) is constructed?

mm: I have been using translation theory"9 as well as
insights from complexity theories'"0 to increase my own and the
students' comfort level with notions of nonlinearity, turbulence,

185 For our purposes in thinking about how we speak for others, the feminist
analyses of ethnography and translation are joined by the problematic of representation
identified in critiques by Derrida and others. See Flax, supra note 19.

186 See Niranjana, supra note 20, passim.
187 Pdlsson, supra note 27, at 15-16 (citing Andre Lefevere & Susan Bassnett,

Introduction: Proust's Grandmother and the Thousand and One Nights: The "Cultural"
Turn in Translation Studies, in Translation, History and Culture 11 (1990)).

188 Id. at 16-17.
189 The Craft of Translation (Rainer Schulte & John Biguenet eds., 1992); Theories

of Translation: An Anthology of Essays from Dryden to Derrida (Rainer Schulte &
John Biguenet eds., 1992).

"9 See N. Katherine Hayles, Chaos and Order (1991) and J. Richard Eiser,
Attitudes, Chaos & the Connectionist Mind (1994).

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ambiguity, and unpredictability. Stories can have these
attributes.

During the fall 1993 semester we invited Tara Ford, an
attorney with Protection and Advocacy,"'9 to come to our clinic
class to lead a discussion on problem solving- She told us about
Frank Baca, 192 an institutionalized client who was
developmentally dis/abled, wheelchair bound, and almost
completely non-verbal. Tara described Frank as communicating
through gestures that she interpreted to mean yes and no.

The immediate problem that Tara brought to the class's
attention was his desire to move out of his current group
placement with an older, non-ambulatory population and into
another facility with a younger, ambulatory, but potentially
unruly group of residents. Frank had lived in this facility at a
time when he had more mobility, and Tara speculated that
perhaps his desire to return was motivated in part by his
memories of that time. Such a move, however, would put him
into an environment where he might be in some significant
danger. Tara emphasized that making this move was a
preference that Frank had been expressing over a long period of
time and that he had persisted in doing so despite strong
opposition from his caretakers.

There was, in actuality, a third option. Frank was
potentially eligible to move out of the institution. A class action
had been filed by Protection and Advocacy lawyers arguing that
the residents were best served by being "de-institutionalized." In
acting on Frank's expressed wishes, Tara was resisting both her
agency and Frank's caretakers. She worried that she might be
playing God in some way.

Tara posed this ethical predicament to the class: should she
act on his desire to move and possibly place him in danger or
should she thwart his desire to move and keep him from physical
danger? We explored different strategies for achieving his
objective and yet preserving his safety, such as adding a buzzer
to his wheelchair so that he could summon help when necessary.

'9' Protection and Advocacy projects are federally funded to provide legal services
to the physically and mentally dis/abled.

192 Frank Baca is the client's real name. I have used his name and his story with
his permission and after consulting with Tara Ford. Tara and I also conferred with his
legal guardian who provided us with verbal and telephonic permission to use Frank's
story in this Article after reading a draft of the portion of the paper dealing with Frank.
I also read this portion of the article to Frank who responded with attention and smiles
which I interpreted to mean that he "approved" the version as written. For an
innovative approach to telling the stories of adults with dis/abilities, an appraoch that
involved dis/abled persons in the analysis of successive drafts of their stories and
included their comments and reactions to the authors' construction of their stories, see
David M. Engel and Frank W. Munger, Rights, Remembrance, and the Reconciliation
of Difference, 30 Law & Soc. Rev. 7 (1996).

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Towards the end of the class, Tara explained that her
understanding of personal autonomy and decision-making
includes the right to put oneself at risk She noted that, despite
considerable limitations, Frank was, nonetheless, entitled to make
decisions for and about himself As his lawyer, she saw herself
as protecting this right. Her role included explaining options to
him as well as she could and then helping him implement his
choice. I admired her ability to interpret this problem in a way
that emphasized the client's prerogatives without taking herself
off the hook If she acted on Frank's wishes and he was injured,
it was clear that she would be, or at least would feel, to some
extent, responsible.

This case raised the difficult problem of understanding and
interpreting the client's story when the client does not share the
lawyer's communication system. One of the principles of
interviewing we had stressed with the class was that leading
questions are ineffective in eliciting the client's story. We had
emphasized the importance of open-ended questions. Yet here
was a client who communicated through subtle facial cues,
grimaces for no and half-smiles for yes, a client who could only
communicate by responding to leading questions. Adroit
interviewing involved asking and re-asking questions that could
be answered by gestures "meaning" yes or no.

What does it mean to be true to the client 's story when the
story is largely the lawyer 's construction? How do we represent
the minimally communicative client? Tara Ford used Frank's
profound silence and his ambiguous nonverbal cues to help us
think rigorously about her representation of him.

After class, I asked Tara about the cultural and linguistic
contexts of the representation. I wanted to know whether the
client was interviewed only in English. Given that the interview
employed leading questions, were those questions in English?
Did he in fact speak Spanish? What language or languages did
his family use in speaking with him? Tara, intrigued through
training'93 and experience with this aspect of the
representation, invited me to assist her.

At least that 's the way I interpreted our relationships at the
beginning. Being a Latina lawyer with years of experience
involving issues of cultural difference, I thought I brought some
expertise on the representation of Outsider clients. Little did I

193 Tara studied at Stanford Law School with Gerald L6pez who developed a model
of "rebellious" lawyering that draws heavily on translation practices. See generally,
Gerald P. L6pez, Rebellious Lawyering: One Chicano's Vision of Progressive Law
Practice (1992). According to L6pez, rebellious lawyers engage in "bicultural and
bilingual translation" moving "in two directions, creating both a meaning for the legal
culture out of the situations that people are living and a meaning for people's practices
out of the legal culture." L6pez exhorts progressive lawyers to engage in translation
practices that "transgress" established practices and power relations. Id. at 43-44.

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realize that I was entering the borderlands where identities are
fluid, meanings are contingent, and theories, methodologies, and
techniques are, at worst, irrelevant and at best, remolded

In early April 1994, I accompanied Tara to meet Frank The
institution is located some forty-five minutes from the law school.
The drives there and back allowed Tara and me to talk about the
'facts" of Frank's case as well as his options. But there is
something about talking in a car, a private and enclosed space,
in which the two people are facing forward, avoiding eye contact.
Car talk can allow more immediate and greater intimacy. And
so it was that we were able to talk about our personal lives as
well as about race and racism, about our successes and our
qualms.

To arrive at the buildings that are Frank's world, we had to
enter through a guard station. Tara, and I as her guest, would
be logged in and later, logged out. As we waited at the
receptionist's desk while Frank's whereabouts were confirmed,
our nostrils were filled with the odors of institutionalization, a

formaldehyde-like smell that reminded both of us of the specimen
jars found in high school biology classes. The walls were, of
course, green, painted at a time when psychological theories
about the placating effect of wall color on emotions had come
into vogue.

Frank is in his mid-40s, balding slightly with graying hair.
He sports a baseball cap. He has little use of his hands which
he holds in loose fists on the blue vinyl tray of his wheel chair.
He has a strong gaze and an infectious smile. The staff members
frequently greet him with hugs and other gestures of affection.

On that first visit, it was clear that Tara and he had a strong
bond. I observed Tara asking questions which Frank responded
to with subtle but, from my perspective, consistent facial
expressions. Tara introduced me and I explained that, like Tara,
I too was a lawyer. I asked him if he wanted me to talk to him
in Spanish. He turned and looked at me. His face smiled

On our next visit we met with his legal guardian. We
explained that I was a law professor and that we were trying to
add a cultural and linguistic dimension to Frank's representation.
Frank had been cared for at home through his late teens, and it
was clear that his ability to make and maintain friendships had
been nurtured by his family. We spent time trying to find
information about his family, about his likes and dislikes, and
about his preferences.

After the meeting we had some idea that Frank was
responding enthusiastically to hearing both Spanish and English
in our interactions with him. He liked country music as well as
Mexican music. We urged the staff to make sure that his room
featured family mementos, such as greeting cards, and to hang
family pictures where he could see them. We also wanted to
require the dietician to add fresh green chili to his diet. While

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Frank liked the canned variety, fresh green chili was a favorite
dish. 1

94

On one of our first visits, his guardian, Tara, Fank and I
went to the snack bar. While preparing Frank a hot dog, we
asked him if he wanted mustard. He grimaced. "Ketchup?"
Again he grimaced. "Mayonaise?" Frank nodded "You don't
really want mayonaise, do you?" Again he nodded, able to
express his preference even when resisted by the three of us with
words and with our assumed norms about condiments.

We came to realize that he understood more than the staff
gave him credit for. On one occasion, a family member
interjected that Frank had learned his colors and numbers while
living at home and that he probably still remembered them. He
demonstrated by using M & M candies, helping Frank count and
sort the colors. The bonds of love and understanding between
the client and his family transcended words.

We brought a disposable camera to take pictures and to
begin an album for him. As Frank left, he carefully vocalized a
"ba." We were sure he was saying goodbye. We were, after all,
competent translators. Weren't we?

In May 1994, Tara and I visited Frank again. We had
developed the pictures we'd taken and we made an album for him
to have in his room. We all had sodas, and Tara fed him a hot
dog. I labelled the pictures in the album, talking all the while in
English and Spanish. We discussed the upcoming staff meeting
to decide when he would be moving to his preferred location, it
now being a question of when and not if

B. Speaking for and Re/Presenting AnOther

I am suggesting that teachers and students learn to re-present
themselves through a form of border writing in which the
narratives they construct for themselves in relation to the Other
are effectively deterritorialized politically, culturally, and
linguistically, so that the meaning-tropes through which
subjectivity becomes constructed fails to dominate the Other. 95

Feminist and subaltern debates about translation studies and
ethnography can have the effect of discouraging us, of making us wonder
how we are to undertake our tasks, especially those that involve us with our
students. What are we to teach them about speaking for Others, about re-
presenting Others? In this section we respond to the rhetorical question we

'94 The truly postmodern lawyer/mother would provide a recipe for this dish at this
juncture.

195 McLaren, supra note 45, at 221.

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have posed by examining two techniques, slow-motion reading/listening and
resonance. We then return once more to the concept of the borderlands.
We can find starting points in feminist and subaltern literature for re-
directing our teaching by re-fashioning our languages, claiming our multiple
selves, and engaging in critical and self-critical collaborations.

1. Slow-Motion Reading / Listening

In the mid-70s, Claudine Herrmann wrote an essay in which she
decried Evelyn Wood-type techniques for speed reading."9 She described
speed reading as a danse macabre, a dance with the dead. What she saw
as dead were the texts, the linguistic constructions vitiated by a reader
intent on getting through and getting out of the text. Herrmann exhorted
us to engage in what she called "slow-motion reading," listening to our
inner voice enter into an interrogation of the text."9  "Slow-motion
reading" invites us to disrupt disciplinary boundaries, to weave together
different languages, to look at Spiegal catalogs with the eye of the post-
modern critic. "Slow-motion" interpretation can be deployed with oral texts
as well. "Slow-motion listening" prompts us to listen on several levels to
our clients, our friends, and our families.

mm: While we were writing this Article, Melissa and I were
talking on the phone when I realized that she and I say "uh, huh"
in different ways. When I first heard her "uh, huh," I heard it
like the single "uh, huh" I use to show that I am occupied, don't
want to be interrupted, and not really paying attention. I use a
double "uh, huh; uh, huh" to show that I am engaged, listening
and signaling the other person to continue.

Using slow motion techniques, especially when they involve non-verbal
elements a person is likely to be unaware of, can be disconcerting and care
must be taken not to offend. However, non-verbal communication is highly
ambiguous and examining one's interpretation of paralanguage sounds and
gestures can be instructive for both the sender and receiver of the encoded
messages.

Slow-motion reading and slow-motion listening are techniques that we
can teach and use with our students and our children. It is likely that they
already have at least a nascent understanding of the multiple meanings of
their language(s). Many students, especially the Outsiders-students of
color, gays, lesbians, dis/abled, the different, and the alienated-are attuned

196 Kline, supra note 28, at xii (citing Claudine Herrmann, In Favor of Slow
Motion Reading, 20 Boston Univ. J. 2, 2 (Nancy Kline trans. 1972)).

197 Id.

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to the encoding of messages through the m~tissagegs of rap music and the
hybridity of slick advertising with all its dangers and allure. Students are
thus likely to understand the stereographic and stereophonic nature of
messages and may be using slow-motion listening to decode cultural
messages. The transferability of this skill to the listening of their clients'
stories, however, may not be obvious.

Slow-motion reading and listening are necessary because messages and
stories are multi-layered. Literary critics, translators, ethnographers,
artists, and writers have begun to examine the stereophonic and polyvalent
quality to language, especially evident in autobiographical stories. Deleuze
and Guattari write that the task of the translator is "to make use of the
polylingualism of one's own language, to make a minor or intensive use of
it, to oppose the oppressed quality of this language to its oppressive quality,
[and] to find points of nonculture or underdevelopment, linguistic Third

"1199World zones by which a language can escape ....

mm: The polylingualism of one's own language can be revealed
at unexpected moments. One day in early December my youngest
daughter Alex and I were driving along together. She was about
three years old. She confided that she was going to write a letter
to Santa Claus, but that she was worried because she couldn't
decide whether to write an "A" or a "B". For the moment I was
perplexed, but then her meaning became apparent.

Writing a letter to me meant writing many letters in order to
form words in a stylized format to a certain addressee. Not
unreasonably, writing a letter to Alex meant writing exactly one
letter, and she was puzzling over which letter it should be. I
remember pulling off the road and stopping the car. Alex was in
the rear seat strapped into the car seat. I kissed her, shaking my
head in mute amazement at the complexity of language, and the
polylingualism of writing a letter.

Slow-motion reading with an appreciation for the polylingualism of
language is only one technique to attenuate our cultural dyslexia. This
slow-motion interplay between our inner voice and the client's story can be
informed by the work of Dan Sperber' who draws a distinction between
the translation or interpretion of, on the one hand, individual words and
thoughts and, on the other hand, collective representations attributed to a

198 See Lionnet, supra note 22, at 16.
199 Gilles Deleuze & Fdliz Guattari, Kafka: Toward a Minor Literature (Dona

Polan trans. 1986), as cited in D. Emily Hicks, Border Writing: The Multidimensional
Text xxx (1991).

200 Dan Sperber, Interpreting and Explaining Cultural Representations, in Beyond
Boundaries, supra note 27, at 162, 165.

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whole social group ("The So-and-So believe that . . .").20' This
distinction between individual words and cultural facts can be employed
with students in discussions about essentialism. The client's communication
as collective representation or, conversely, the lawyer's framing of the
client's individual experience in collective terms, can provide a moment for
the lawyer and the client to decide together whether a re-communication,
a re-presentation, of the cultural fact is strategic as well as consistent with
the purposes of both the lawyer and the client.

2. Resonance

How can the lawyer speak for an/Other without constructing and re-
presenting the client as alien and exotic? How can the lawyer employ the
techniques of ethnography and translation without embracing the attitude
implicit in the essentialistic and racist device of the "primitive"?

The Norwegian anthropologist Unni Wikan uses the term resonance to
describe an approach to intercultural communication.

Resonance thus seems akin to an attitude which we might label
sympathy, empathy or understanding. Whether it is 'the same'
or 'different,' I cannot say. Balinese see as critical that it entails
using one's feelings as well as and at once with one's thoughts.
Only this enables appreciation-which is more than just
understanding.2 2

Resonance, particularly in the context of anthropological fieldwork,
requires both parties to "try to grasp, respectively convey, meanings that
reside neither in words, 'facts,' nor text, but are evoked in the meeting of

20. Id. at 165. These collective representations he calls "cultural" and asserts that
some representations are more "contagious" than others, more successful in a given
population, and therefore susceptible to an epidemiological analysis. Id. at 179.
Linking his analysis to cognitive psychology, Sperber suggests that "the explanation of
a cultural fact, that is, of a distribution of representations, is to be sought not in a
global macro-mechanism, but in the combined effect of countless micro-mechanisms. "
Id. at 182. He then proposes a series of questions from an epidemiological perspective:

What are the factors that lead an individual to express a mental representation
in the form of a public representation? What mental representations are the
addressees of the public representation likely to construct? What transformation
of content is this process likely to bring about? What factors and what
conditions render probable the repeated communication of some
representations? What properties, either general or contextual, does a
representation need in order to maintain a relatively stable content in spite of
such repeated communications?

Id. at 182-83.
202 Wikan, supra note 29, at 194.

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one experiencing subject with another." 3  Relying on the work of
Donald Davidson, Richard Rorty, and Balinese epistemologists, Wikan
explains using the words of a Balinese colleague, that resonance "fosters
empathy or compassion . ..by apply[ing] both feeling and thought."''

Resonance challenges anthropology's (and, by extension, the law's)
"romance with words, concepts, symbols, text and discourse."'

" The
necessity of transcending words while attending to the speaker's intention
is inherent in "the maxim of interpretive charity," which has also been
called "the co-operative principle."2 6  Wikan writes that too often we
come to our work with a critical frame of mind instead of a charitable one.
Too much, she argues, has been made of critical thinking.

mm: This Article required numerous versions. I found that as
I wrote more about slow-motion reading and resonance, I needed
to return to my references and sources. Original versions of this
Article contained judgments of others' work that sounded harsh
and seemed to lack depth. I don't know whether I have been
successful but, as I wrote and thought about resonance, I
repeatedly returned to the task of understanding others' writings
and trying to substitute what I now think is over-used in
academic writings, namely critical thinking for what Wikan has
called "interpretive charity. "27

Wikan then asks, "How can we build an anthropology which enables
us to heed better people's complaints, along with their joys?" 8 Pleading
for "a broader and simpler theory for seeing communication within social
relationships, putting what is unspoken and self-evident to speakers into
place before focussing on concepts and discourse," Wikan explains,

my plea that we attend to the concepts by which people feel and
think about and handle the tasks and tribulations of their
individual existences, is meant not as an invocation to attend to

203 Id. at 190.
204 Id. at 189.
210 Id. at 193.
206 Wikan credits Stanley Tambiah with the term "the maxim of interpretive

charity," and Dan Sperber and Deidre Wilson with "the co-operative principle." Id.
at 193 (citing Stanley J. Tambiah, Magic, Science, Religion, and the Scope of
Rationality 122 (1990); Dan Sperber & Deirdre Wilson, Relevance: Communication
and Cognition 32ff (1986)).

207 See id.
208 Wikan, supra note 29, at 202.

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concepts per se, but to the shifting aspects of being in the world
and acting on those by which concepts uniquely spring alive.209

Wikan cautions us that "the quest for meaning blinds us to what life is
all about. It entices us to get lost in words, and lose sight of the larger
issues."210  Wikan admonishes her fellow anthropologists intent upon
gathering, writing, and publishing their ethnographic texts. It is an
undertaking that she describes as' a "'freedom from urgency, from
necessity'; our anthropological observation-point is 'founded upon the
neutralisation of practical interests and practical stakes. ' '"2 How much
more compelling is it for the poverty lawyer to learn to "attend" to people's
complaints, joys, and tribulations? Such a lawyer, unlike the ethnographer
in the safety of her academic department, usually can't neutralize the
practical interests and practical stakes.

mm: Let's return to Frank Baca's story. In analyzing her
role as his lawyer in order to resolve the ethical dilemma she
found herself in, Tara Ford brought an appreciation212 of the
situation in which Frank found himself Tara was able to use
resonance, to go beyond words, to transcend the void left by
Frank's wordlessness, to attempt to vindicate what she concluded
was at stake: namely, his right to make decisions for himself,
even, and perhaps most importantly, when such decisions might
put him in danger. His humanity, his personhood, and his
selfhood were wrapped up in that decision-making right.

Frank is very adept at establishing relationships. He is well
liked by his caretakers and by the other people living at the
institution. Frank is also an able communicator. I observed him
at meetings with many participants. His limitations, both mental
and physical, are formidable and undeniable, but he can and
does make his preferences known. He also knows how to persist,
to wait and outwait those who would thwart his desires.

To an extent greater than other clients, Frank has imbedded
himself in my consciousness and in my heart. He has affected the
manner in which I relate to others. I would like to think that I
listen better to others' words because of my short exposure to his
valiant and successful attempts to communicate without words.

Frank has, from most people's perspectives, lived a stunted
life, cabined by his limitations and isolated within the

209 Id.
2 0 Id. at 207 (emphasis in text).
211 Id. at 206, (citing Pierre Bourdieu, The Scholastic Point of View, 5 Cultural

Anthropology 380, 381, 383 (1990)).
212 Wikan, supra note 30, at 194 (quoting Richard Shweder, Thinking Through

Cultures: Expeditions in Cultural Psychology 18 (1991)). Shweder defines
"appreciation" as understanding linked with lived experience.

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institutional setting in which he exists. He has, however, affected
Tara, myself, and others in fundamental ways. I now see my role
in Frank's re/presentation was that of observer and learner. He
and Tara had much to teach me.

I have never had much contact with persons with extensive
and obvious dis/abilities. I had never been in an institution such
as the one in which this client resides. I came to understand
only very recently that, for me, the institution was a borderland.
I entered with all the trepidations of the clinical students who
first visit the colonias along the Mexican border where our clinic
provides legal services to a nonmigratoryfarmworkerpopulation.
The institutional setting was alien to me and I entered feeling
denuded of my usual defenses. It was unsettling and
destabilizing.

Multicultural experiences are often accompanied by feelings
of discomfort, of being at risk. If we can allow ourselves to
remain or to return to whatever triggers this discomfort, we can
begin to store the experiences that can help us understand
Others. Melissa has quoted from the work of Elizabeth Spelman
to the effect that "the acquisition of [cross-cultural] knowledge
requires a kind of apprenticeship; and making oneself an
apprentice to someone is at odds with having political, social,
and economic power over them. ,,2"3 I didn't particularly like
this idea and felt uncomfortable with including it in the Article.
I was resisting be.cause an apprenticeship seems hierarchical,
someone is in the "know." Cultural knowledge to me is
contingent, fluid, fleeting. An apprenticeship typically extends
over time with one person mentoring the other. My experience
is that relationships involved with multicultural learning have a
flip-flop quality to them, at one time one person will be the
teacher. and at the next moment the teacher will be the learner.
Because of the multivalent nature of power, our relations with
others are not rigid and fixed. I can feel subordinated through
language, color, ethnicity, gender, and in a curious way my
economic deprivation as a child remains embedded in me even
now that I am relatively affluent. But I recognize that I am in
the dominant role with respect to sexual orientation, class,
education, marital status, motherhood and able-bodiedness.

I have, however, revised my thinking to agree that the idea
of apprenticeships is useful. Tara and Frank allowed me to
witness and learn from their relationship. They were my guides
into the borderlands. They taught me with their patient and
gentle interactions. Tara taught me with her insightful
observations about staff dynamics, legal strategies, and with her
discussions about power, privilege and their evanescent presence.
She was an adept interpreter of silence, of gesture. Frank taught

213 Spelman, supra note 23, at 178.

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me with his courage as manifested in his persistence. He taught
me that the desire to communicate overcomes wordlessness. He
taught me to "listen" to the expression of the face and the
intensity of the eyes. He taught me that human bridges of
appreciation are built with smiles, shrugs, and, at times, the tears
offrustration. Tara and Frank took me into the borderlands and
served as my translators. I am immensely richer for having
gone.

CONCLUSION

We seek to develop and weave together three themes in this paper, one
pedagogical, one substantive, and one discursive. First, we set out to ally
ourselves with our students in creating pedagogical spaces where difference
can be explored. To do so, we use popular culture to introduce the notion
that messages are encoded with layered and ambiguous meanings. The
pages of the Spiegel catalog cunningly lace together the imagery and verbal
codes of neocolonialist liberalism with those of postmodern cultural
hybridity as though the significations of the two are indistinguishable.
"Plantation chairs" and "Rustic Cowboys and Indians" are juxtaposed with
"Americana," "Freedom of expression" and "Home Country" where
"mixing cultures is only natural" and one is free to "expand horizons with
ethnic looks."24 We can be, and are, co-opted through our consumption
rituals into a silent complicity with racist commercialism. But how do we
resist? We suggest that in learning to decode such messages, we begin to
see the connections between "reading" pop culture and "reading" the culture
of one's client. Understanding multivalent meanings and engaging in code-
switching is a skill that is transferrable, a technique for the home, the
classroom, and the courthouse.

The Dana Carvey/George Bush piece from "Saturday Night Live" uses
yet another technique to layer messages. Dana Carvey fashions a phony
and comedic identity, parodying the former President. Before our eyes
George Bush fashions a "real" but now also comedic identity, only now the
relationship has switched, the borrowed from is borrowing. Ingredients of
identity-gestures, tone of voice, and word choices-are made fun of by the
parodist and returned to their owner, subtly changed. This comedy routine
previews the part of our paper that examines anti-essentialism and the
postmodern notion that our identities are constructed, fluid, and malleable.

The substantive theme of the paper employs the concept of the
borderlands to respond to the feminist scholarship on anti-essentialism and

214 Spiegel Catalog, supra note 3, at 292, 336-37, 352.

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the situatedness of the subject, what Katherine Bartlett has called
"positionality" 215 and what Joan Williams refers to as "context., 21 6 We
find the concept of the borderlands useful because it challenges the idea of
a single perspective. The borderlands encourages us to experience a
"bilingual, bicultural, biconceptual reality." 217 Awareness of the
borderlands enables us to make critical linkages between our own stories
and the stories of cultural others. 2  The work of Angela Harris,
Kimberld Crenshaw, Maria Lugones, and Elizabeth Spelman exhorts us to
be constantly aware of difference and not to expropriate the stories of others
in order to make those "critical linkages."

We also offer the borderlands as a trope for understanding the process
of rendering oneself vulnerable but open to opposing perspectives, new
voices, and different worlds. We have utilized the notion of the border to
propose new ways of thinking about and teaching about a culturally diverse
society where law students must be adept at interacting with a wide range
of clients, peers, and present and future colleagues.

We have imported into lawyering the work of literary critics,
anthropologists, sociologists, criticalists, and scientists and have focused on
border techniques such as slow motion reading/listening and resonance
borrowed from other contexts to be used in the re/presentation of clients
and in the refraining of lawyering and professional values.

We have used scholarship from ethnography and translation studies to
refine the metaphor of the lawyer as translator by importing into this
analysis the concerns of postcolonialists. While we agree that ethnographic
and translation techniques can improve the quality of lawyering especially
when the client does not share the lawyer's race, gender, or other such
characteristics, we caution that such techniques have the potential of
obscuring the subtle workings of power, privilege, and bias. We further
argue that Outsider and Insider lawyers are not situated equally with respect
to such techniques. We offer la Malinche Paradox as a tentative analysis
of the Outsider lawyer's interpenetrating perspectives, hybrid techniques
and tools, and conflicting objectives.

mam: The Frank Baca story is intended to disrupt the usual
categories of Outsider/Insider by exposing the fluctuating and
contingent nature of the categories. The Outsider Latina law
professor blinded by her Outsiderness collides with her
Insiderness and her dis/abled client's Outsiderness: at once she

215 Bartlett, supra note 33, at 879.
216 Williams, supra note 76, at 299.
217 Hicks, supra note 43, at 49.
218 McLaren, supra note 44, at 106.

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is Trobriander and Malinowski, the borrowed from and the
borrower. 2 9

We offer the border as a place to re-territorialize and reframe ethnographic
and translation practices.

We brought to this academic project the desire to suture together the
public and private domains of our lives. In these pages we have
embroidered analysis with personal anecdotes. Through our narratives and
soliloquies, we have drawn connections between our lives in the academy
and our lives at home.

mh: We have described the borderlands as a place of tension and
anxiety but also as a place of exhilaration and creativity. My
collaboration with Margaret introduced borderlands to my life.
Anxiety came from making myself vulnerable, by revealing fears
and weaknesses. Our discussions were often intense and
exhausting. In fact, after one particularly intense period of hard
work addressing these issues, I found I had to withdraw for a
while. I could no longer do the difficult personal work which this
Article demanded. Never before had the personal and the
professional surged together so dramatically in my work as a law
professor. But now as the Article is finished, I miss that heady
time-- that time of intense collaborative work, that time of trust
and creativity and I look forward to it again ....

Multivocal and polylingual narrative has been the discursive theme of the
paper. We have tried to make audible the synergy of diverse perspectives,
using our multiple voices.

Cross-cultural learning is possible only in tandem with others. It is a
journey that cannot be taken alone. The borderlands are places of
collaboration, of interactivity, of shared as well as opposing values, of
exposed and juxtaposed weaknesses, and of ignorance, unmasked and
remasked. Borderlands beckon to risk takers, meaning awakers, and vision
makers.

While we believe that the work of healing our cultural dyslexia is
partly cognitive, in and through this paper we have tried to enact the

29 See supra note 148. Thinking of the Trobriander graduate student of
ethnography, I long for the clients who will turn these ethnographic tools back on us.
Clients who truly collaborate with us by breaking through the silences we impose on
them in order to listen to our stories, re/construe them and, in doing so, construct new
identities for us lawyers.

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experiential aspect. We may approach the entrances of the borderlands
through reading and thinking, however we believe that the borderlands is
a phenomenon of living, a phenomenon of well-intentioned people
interacting in deliberate and thoughtful ways with those who are
simultaneously like and unlike us/them. The borderlands require that we
bring our critical faculties to bear on life's experiences, but, more often
than not, we must suspend them in favor of more charitable and affiliative
impulses. In the borderlands we eschew "mind-knowing" for "feeling-
thought"' so that we can come to appreciate the joys and tribulations of
those around us in a way that makes a difference that matters.221

220 Wikan, supra note 29, at 189.
221 See Williams, supra note 31 at 74.

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