A. Structural Violence: Causes and Cures?
The critique I have elaborated above is, I believe, a compelling indictment of the institutional arrangements that have been developed through the interpretation and negotation of the boundaries between Title VII and the NLRA. This critique provides a concrete illustration of the interpretative practices through which these legal regimes have been constituted as a structure which suppresses the agency, restricts the institutional authority and ignores the collective identity of women of color. The question is what does this all really mean? Were "these cases" wrongly decided? (1) Should they be reversed? If so, which cases should we reverse? (2) Put differently, the question is really this: how, on what basis and with what consequences can I legitimately argue, for example, that Emporium Capwell's interpretation of Section 7 of the NLRA was wrong because of the way Section 703 of Title VII was interpreted in ILA Baltimore or the way Section 704(a) was interpreted in King v. Illinois Bell or the way Rule 23 was intrepretated in Abron, or the way the LMRDA was interpreted in Donovan or the way the duty of fair representation was treated in Goodman?
It is extremely difficult to answer these questions because they are driven by and presuppose a critique that is completely external to the terms on which any of these cases were argued and resolved. Each case is situated in a different doctrinal domain and decided by reference to a particular set of interests and concerns which are different from the interests and institutional considerations that drive decisional practices in the other domains. Nevertheless, the thing that holds these cases together in the critique I have elaborated is the complete and total absence of the woman of color as a legitimate agent or remedial reference point in any of these cases and the structure of power[lessness] that is, thereby, established and maintained. It is as though our interests do not matter because we simply do not exist. To the extent we attempt to locate ourselves in these cases, we find ourselves situated in a network of interpretative practices that appear committed to restricting our institutional authority, (3) suppressing our agency (4) and denying us a distinct identity as individuals (5) or as a group. (6)
But how can this be? Or, to be more specific, this structure of disempowerment -- this consistent and systematic suppression of women of color in and through the interpretative practices that construct these various doctrinal domains and institutional arrangements -- raises one of the most fundamental questions of "post-Foulcauldian" political theory. (7) In a recent book, Iris Marion Young has stated the question quite well. (8) The question is raised by "the ironic situtation" of contemporary welfare corporate societies, "in which power is widely dispersed and diffused, yet social relations are tightly defined by domination and oppression." Focusing on this ironic situation, Professor Young seeks to understand how "widely dispersed persons are agents of power without "having" it, or even being privileged." As I do, Professor Young asks "why [it] is [that] this general pattern [of unequal distribution of high level positions across women and men] is reproduced even in the face of conscious efforts to change it." (9) In our context, the question is particularly compelling when we consider that adjudication occurs in many different courts, presided over by many different judges, with different ideologies adjudicating ostensibly unrelated issues in distinct doctrinal domains. (10) How can it be that this system of "decentralized" power nevertheless operates to maintain a systematic, cumulative and interactive suppression of women of color as legitimate actors in concrete workplaces? At this point, it is much easier to answer these questions than to propose acceptable solutions; nevertheless, in the following sections I will attempt to do both. The first section attempts to explain this structure of violence as an artifact of two features of legal interpretation, namely, the illusion of objectivity that pervades its practice and the fragmentation of discursive domains that obscures its subjectivity. To overcome structural violence against women of color (and indeed against any other political identity that has been systematically suppressed in the practice of legal interpretation), we must first learn to recognize it when we [don't] see it, a task that is made all the more difficult by the fact that structures of violence are constructed on the absence of the suppressed interests and identities as important points of reference in legal interpretation. The absence of women of color does not, however, occur in a vacuum. On the contrary, our absence, the failure or refusal to accord us a legally operative identity or to preserve our agency within the institutional arrangements under review is grounded in and bounded on all sides by the illusion of objectivity that pervades the practice of legal interpretation as much as it pervades the legal doctrines through which the distribution of institutional power is explained and legitimated. The first task is, therefore, to explore this illusion in its various manifestations and modalities, and, indeed, my purpose is to show that both the fragmentation of Title VII and the NLRA and the repeated reliance on the duty of fair representation are expressions of this illusion.
The illusion of objectivity does not, however, explain why judges, agencies and arbitrators with different ideological agendas operating in different doctrinal domains and reviewing different institutional arrangements, nevertheless, produce decisions that operate systematically and cumulatively across these domains to suppress the identity and repress the agency of women of color in the real world. Certainly, the fragmentation of discursive domains is an important factor in constituting adjudication as a vehicle for the blind reproduction of subordination, but there must be something else going on. The "mere" opportunity does not explain the actuality. Thus, I address this "actuality" and attempt to explain it by positing and exploring what I call "the unitary consciousness of law." I argue, in effect, that legal doctrine is an inherited artifact in which are embedded and through which are articulated the contingent perspectives, assumptions and normative commitments of the group which has judged, that is, the group which has controlled the interpretative practices through which legal doctrine is articulated. To the extent interpretative authority has been concentrated in one group, law (read now as the legal doctrine and the repertoire of permissible interpretative moves, which are already developed) is not only not objective, it is affirmatively subjective, an expression of the subjectivity of the group in whom interpretative authority has been concentrated.
To my mind, there is little doubt that the structural violence of law against women of color is grounded on and perpetuated, in large part, because embedded in the legal doctrines and interpretative norms, which individual judges use to decide individual cases, is an inherited consciousness which devalues and suppresses the self-identity and transformative agency of the woman of color as much in her presence as, more commonly, in her absence. The real question is whether the redistribution of interpretative power can transform the subjectivity of the unitary consciousness we have inherited into the objectivity of a multiple-consciousness, whose substance we have yet to fully comprehend. There are reasons both to hope and to doubt. (11) Thus, in the second section, I explore two possible ways of moving beyond to begin to transform the structures of violence I explored above, namely through the decentralization of interpretative power and redistribution of institutional power.
1. Structural Violence and the Illusion of Objectivity
A. The Ideology of "Objectivity" and The Institutional Structures of Subjective Power
To understand the role which the "illusion of objectivity" plays in erecting the institutional structure of power[lessness] (namely the network of restrictions through which women of color are negated), I want to return to the debate over substantive legal standards defining the duty of fair representation. The vast majority of scholarship on the duty of fair representation has focused on debating the appropriate standards for reviewing the distributional decisions and administrative actions of elected union officials. Rather than attempting to address all this scholarship directly, I want, instead, to focus on one of the most recent articles on the duty of fair representation, in which Professors Harper and Lupu discussed alternative legal standards and concluded that equal protection should be the exclusive norm in fair representation cases. (12) In their article, Harper & Lupu invoke a model of "principled democracy," to support their claim that union actions should be reviewed solely to ensure that the decisions and activities of union representatives were based on principles that accorded all persons "equal respect." They then proceed to illustrate how cases decided under alternative substantive standards (13) would be more satifactorily resolved under the principle of equal respect.
Harper & Lupu elaborate their vision of a principled democracy by contrasting two models underlying the alternative substantive standards that have been applied in duty of fair representation cases and defended in the legal scholarship. The first rejected model is "unconstrained majoritarianism;" the second is "the stringent DFR." (14) According to them, the first model "would leave workers at the mercy of union majorities and insiders," while the second "would unreasonably weaken the power of unions to negotiate with employers." (15) By contrast, Harper & Lupu argue that a legal standard based on the model of principled democracy would provide majoritarian representatives the range of discretion necessary to develop, negotiate and implement some acceptable conception of the common good on behalf of their constituency, limited only by the condition that their determinations "make no distinction that rests upon the identities of particular persons." From their model of principled democracy, Harper & Lupu then derive a commitment to the principle of equal respect, which requires that "all decisionmakers must regard all persons on whose behalf they are authorized to act as having equal and positive value. The principle proscribes . . . decisions that are motivated by animus toward a disfavored group. It does more, however; the principle forbids any decision that counts some persons as more worthy than others even if the decisionmaker has no animus toward those others." (16) In other words, then:
"The equal respect requirement challenges all . . . decisionmakers to provide some principled justification for choosing to benefit a successful pluralist coalition rather than some other possible majority, even if the burdened groups do not include victims of historical discrimination [because d]isadvantaging individuals simply because they are losers in the political process denies such individuals equal respect . . . If the free play of coalition-building politics normally should be accepted, it is not because winning provides its own justification, but because winners usually have principled justifications for forming their particular coalitions. (17)
Harper & Lupu may be quite right to reject the two models of unconstrained majoritarianism, on the one hand, and stringent external review on the other; nevertheless, their proposed alternative is still inadequate. Indeed, Harper & Lupu share more in common with the approaches they critique than they may realize. Like those approaches, Harper & Lupu says nothing about the structure of power[lessness] erected on the foundations of the duty of fair representation, nor do they say anything about who holds power in the union, nor do they ever question the legitimacy of the majoritarian processes through which those individuals acquired and maintain their power.
In this respect, Harper and Lupu's approach is entirely of a piece with the mainstream approach to representative authority in labor law scholarship and judicial interpretation, that is, their approach presumes that the way institutional power is distributed across the race and gender subgroups that constitute the union's membership is irrelevant to the goal of arriving at an objective assesment of competing claims or, as is sometimes stated, at "the common good." Rather than offering some proposal to redesign the structure of institutional power in the workplace so as to increase the opportunities for self-determination for all workers, and particularly for the minority workers whom the duty of fair representation purports to protect, the project, once again, is to articulate some "objectively" defensible principle of fair representation that can be enforced by invoking an external, theoretically neutral and objective, arbitrator or judge.
The thing that makes their article valuable is that they make explicit the assumptions underlying their approach (and, indeed, underlying any strategy to promote fair representation through external standards rather than the redistribution of power). Under the principle of "equal respect", "[d]ecisionmakers may distribute goods between individuals on the basis of an individual's divergent interests -- the level of an individual's need for a good, for instance -- but not on the basis of personal identity. Decisionmakers therefore must act as if from behind a "veil of ignorance" of their own identities and of those who might be affected by their decisions. [Such a requirement] assist[s] in determining whether a particular decision fall[s] completely outside the set of acceptable principles of justice." (18) The problem, of course, is that we have no reason to believe that "decisionmakers" in any forum (whether in a union, a legislature or a court) can ignore their own identities, that they can in effect escape the "constitutive group relations" in which they are embedded. (19) Indeed, if my analysis of the politics of interpretative fragmentation at the boundaries of Title VII and the NLRA shows anything, it shows that the concentration of interpretative power makes legal interpretation a highly subjective medium -- a medium whose subjectivity becomes apparent only in the incoherence of the conceptual relations (20) it deploys across doctrinal domains and the cumulative impact of its decisions on those who are most apparently its "others--" the most damning evidence of which may be the fact that courts positively do not indulge the illusion of objectivity in institutional contexts where racial minorities exercise representative power. (21)
From this perspective, Harper & Lupu's model of principled democracy operates to rationalize the presumption which is institutionalized in the fragmentation of Title VII and the NLRA -- a presumption that the commitment to race and gender equality has no implications for the structure of majoritarian institutions. The assumption is that distributional choices can be fairly and objectively made through majoritarian processes, themselves constructed without reference to Title VII policies, so long as the duty of fair representation and Title VII are available as external limits on the arbitrary or discriminatory exercise of union power in particular cases. In this way, the model of principled democracy legitimates and obfuscates the continued concentration of institutional power. Racial minorities and women of all races need not worry that institutional decisionmaking power is concentrated in the hands of a white/male leadership accountable to a white/male majority because white/males have a legal duty, which is reviewed and enforced in other external forums [in which, for the most part, white/males invoke and deploy the interpretative resources they inherited from prior generations of white/males], to grant the interests of women and nonwhites "equal respect" to the interests of white/males. Not.
B. The Intersubjectivity of Equals: Moral Imperative and Institutional Blue Print
The "illusion of objectivity" that is maintained in legal discourse and institutionalized in [some] representational structures has been of particular concern to American legal scholars since the Legal Realists shattered our illusions that legal reasoning was or ever could be a value neutral application of determinate principles. (22) These insights, so powerfully illustrated in the work of Karl Llewelyn, triggered a crisis of legitimacy, from which we have yet to recover, for if legal doctrine is truly indeterminant, then when and under what circumstances can we ever be assured that judicial decisions turn on anything more "objective" than the judge's fabled breakfast, (23) or even more alarming, his prejudices, stereotypes and the limited perspectives of his contingent life experiences.
In response to this assault, numerous scholars rushed to rebuild and refortify the legitimacy of legal interpretation. Karl Llewelyn, himself, argued that legal doctrine was not all that indeterminate. Like any tool, only the best and the brightest judges could effectively manipulate the indeterminancy of legal doctrine; lesser judges would be bound to follow the trodden paths of established precedent for want of imagination and analytic agility. (24) This account, of course, provides no great reassurance since there is little reason to believe that "best and the brightest" are also the "wisest and noblest" of our judges.
Owen Fiss has also been at pains to refortify our faith in the objectivity of judicial decisions. In Objectivity and Interpretation, Professor Fiss invoked the notion of an "interpretative community," whose practices of review and argumentation render judicial opinions subject to criticism and reversal. (25) This community operates as an external restraint on the discretion which doctrinal indeterminacy affords individual judges, thereby detering arbitrariness, discrimination and corruption in judicial decisionmaking.
In a recent essay, J.M. Balkin has dealt this claim for objectivity a mighty blow. According to Professor Balkin, claims that legal doctrine is or can be made objective by community oversight neglect to take into account "the social construction of the subject." (26) Once we recognize that "individual preferences, and indeed, individual perceptions of social reality . . . have already and necessarily been constructed by social forces . . . the problem of the rogue judge would fade into the background of jurisprudential concern. It would be replaced by the problem of the sincere judge, who desires to interpret the law faithfully, but nevertheless is destined to see the law according to her own ideological perceptions and beliefs. Once the social construction of the subject becomes the basic assumption of jurisprudence, one is less concerned with how constraint is possible than with how undesirable forms of blindness can be avoided." (27)
Professor Balkin's account has important implications for any project aimed at constructing institutional arrangements to determine and implement an "objective" vision of the "common good." The first point, of course, is that blindness is not something that can be avoided by an individual act of will. As Balkin recognizes, the social construction of the subject means that "individual choice is never purely individual; it is shaped and structured before the individual begins her conscious deliberation, and before she experiences the pull of conscience." (28) Nevertheless, Balkin insists that individuals are aware of and can therefore presumably work to alter the structures that determine our preferences and expectations. (29) I embrace both propositions, as well as the possibility of transcending and transforming the structures that construct individual subjectivity. However, while Balkin accounts for this possibility by invoking the analytical instability of thesis and counterthesis within dominant ideological systems, (30) I would locate our hope for overcoming ideological blindness in the increasing empowerment of subordinated social groups. Karl Mannheim has said it best:
"In a well stablized society the mere infiltration of the modes of thought of the lower strata into the higher would not mean very much since the bare perception by the dominant group of possible variations in thinking would not result in their being intellectually shaken. . . [I]t is not until we have a general democratization that the rise of the lower strata allows their thinking to acquire public significance. This process of democratization first makes it possible for the ways of thinking of the lower strata, which formerly had no public validity, to acquire validity and prestige. (31)
Individual consciousness is a social contruct, which neither pre-exists nor stands apart from the social relations in which we are embedded; however, as subordinated individuals acquire and exercise the power to articulate their contingent experiences and project their socially constructed interests and values as operative reference points in legislative, judicial and other constitutive processes, both the structures of legal and institutional arrangements as well as the structures of normative discourse become the segmented work-product of competing political communities. Rather than representing, as some scholars argue, the destruction of a moral consensus, (32) this "segmentation" is, in itself, a first step towards overcoming the forms of blindness that limit our ability to approximate objective justice and achieve a genuine and inclusive community, for it is precisely through exposure to and confrontation with the world experiences and values of competing political communities that individuals first acquire access to alternative perspectives from which to engage in genuine self-criticism and forge an agenda of transformation for ourselves and the society in which we are embedded. (33)
This account of the preconditions of transformation pushes us beyond the insights of those who have only recently discovered the distinct perspective of socially marginalized groups and acknowledged the contributions these perspectives may make to the project of evolving a more just society. (34) The basic problem is that just as our approximations toward "objective" understanding depends upon the further emancipation of oppressed voices, (35) the actualization of "objective justice," an aspiration simultaneously invoked and misused in the concept of the "common good," depends fundamentally and ultimately on the redistribution of effective social and institutional power. This should suprise no one, for it is simply to state that actualization of the transformative possibilities discovered in the voices of the oppressed must be based on a social reality more stable than the altruism and empathy of dominant social actors.
Explicit in Mannheim's account of social transformation is the recognition that the "other's way of seeing" has no ability to "shake" the dominant group unless that way of seeing controls effective power. When power is centralized and monopolized by dominant interests, "being shaken" depends on the continued "openness" or "sensitivity" of the powerful to the claims of the powerless. From a position of privilege, however, the perspectives and claims of the marginalized may be perceived and resisted as nothing but an assault, a destruction, and rightly so, for as theologian James Cone has recognized, to liberate the oppressed may necessitate destroying the oppressor or, more precisely, destroying the way of life, the institutional arrangements and the conceptual structures through which the oppressor, whether intentionally or unintentionally, oppresses. (36) To expect, that the fundamental changes necessary to achieve objective justice can be attained through appeals to the goodwill, altruism and empathy of those, who are privileged by the oppression of others, is to expect from them more than humanity, it is to expect from them divinity, the defining characteristic of which is the willingness to die for another. Recognizing that both those who are made dominant as well as those who are subordinated through the structures of privilege and oppression are human, and only human, means that we as a society must ground social transformation on something more reliable than the empathy of the privileged. It means that redistribution of power is essential not only to obtaining objective social justice but crucial even before that to obtaining objective "understanding," for individuals easily misunderstand the claims we refuse to hear, and the claims that most threaten the theoretical commitments and institutional arrangements that support our privilege are precisely the claims we refuse to listen to -- whenever we can.
The implications of this account of objectivity are far reaching and profound, for it implies a reconceptualization of the purported tension between individual liberty and social equality as well as of the supposed conflict between the "common good" and the suppression of "factions." According to philosopher John Rawls, the first tension is fundamental in modern democratic theory. (37) If, however, liberty is the power of authentic self-determination, then my liberty depends upon the equality of others. Only an equal can confront me effectively, and only by through the confrontation of an equal can I "be shaken" free from the limitations imposed upon my understanding by my own, and otherwise inevitable, contingency. Only through "the other" can I come to understand "the common good." Thus individual liberty and social equality are not truly in conflict but rather mutually interdependent. (38)
More importantly, perhaps, this account suggests that the structural suppression of "factional" claims undermines, rather than enhances, the achievement of a genuine "common good" because it limits effective access to the experiences and perspectives of "the others" whom interpretative power constructs as factions. Through the suppression of "the other," we are all denied the opportunity to transcend the limitations of our contingent perspectives. We are denied, in short, the opportunity for authentic self-determination grounded on the objectivity of a collective truth.
The structure of representational authority that is maintained by the fragmentation of Title VII and the NLRA and legitimated through the invocation of the duty of fair representation is based fundamentally and ultimately on the [strategically manipulated] illusion that the distribution of institutional power among the various socially constructed race/gender groups is irrelevant to achieving an "objective" resolution of conflicting claims -- that, in effect, "the common good" can be objectively determined despite the concentration of effective power among the members of one of these groups (namely and almost uniformly white men). By way of contrast, I want briefly to explore three alternative models of representational authority -- three alternative institutional structures, which would much more readily establish the conditions for objectively identifying "the common good." (39)
The first model, proposed by Eileen Silverstein in 1979, would establish a procedure for the certification of interest groups within an exclusive bargaining unit. (40) In a fairly concrete and detailed account, Professor Silverstein proposed a system in which workers having common economic interests affected by a union's collective bargaining agenda would be permitted to form interest groups, which the union would be required to deal with in good faith, subject to the NLRB's jurisdiction. (41) After certification as an interest group, (42) the group would possess a limited right to veto collective bargaining decisions made by the majority. A veto by the majority vote of any certified interest group would constitute a binding rejection of the proposed collective bargaining agreement, forcing the union to reopen negotiations with management. Once a second agreement was reached between the union and management, interests groups would have only a limited veto. According to Silverstein:
"Any group that had vetoed the first contract proposal and any group whose interests had been harmed by the changes between the first and second proposals could again veto the proposed contract. However, a 2/3 supermajority in favor of ratification would override any second veto. Such a limted veto power would ensure that interest groups could promote and protect their goals while safeguarding the union majority from tyranny by the few." (43)
Silverstein's article considers a variety of problems that might arise in the implementation and enforcement of the provisions establishing a system of interest group certification and provides a hypothetical example to illustrate how the proposals would operate in practice. (44) The novel feature of her proposal -- what distinguishes it from the mainstream debate over alternative models of fair representation is that it attempts to achieve fair representation through the construction of a procedural mechanism that would permit the redistribution of effective institutional power among self-identified subgroups within the union, rather than through the articulation of some judicially enforceable standard of fairness. (45)
A second possible model for achieving the redistribution of institutional power draws on the work of Lani Guinier. (46) In two remarkable Articles, Professor Guinier has launched a compelling critique of the assumptions underlying the purported legitimacy of majority rule (47) and has persuasively defended a series of concrete proposals for resolving the problem of unfair and nonresponsive political representation through a system of proportionate interest representation. (48) Guinier's account is instructive. Under a cumulative voting system:
the threshold for election would be reduced from 51% to something less. (49) In the case of a four person at-large council, the threshhold would be 21%. Voters would each be given the same number of votes as open seats (four in this case) that they could distribute by their choice among the competing candidates. If black voters are a politically cohesive interest constituency, they might use all four of their votes on one candidate. In a 100 voter jurisidiction, where each black voter gave all four of her votes to one candidate, a 25% black minority could elect a representative. The intensity of their interests and their political cohesion [as well as the increased potential for developing coalitions with politically allied non-blacks] (50) would ensure black voters the ability to elect at least one representative." (51)
By analogy, a second model for redistributing institutional power within unions would import, into the election of union officials, the cumulative voting mechanism, which Professor Guinier proposes for political elections under the Voting Rights Act. (52)
A final and perhaps most radical approach would follow Professor Schatzki's proposal to abolish exclusive representation altogether, eliminate the Board determination of "appropriate bargaining units," and establish a system of self-determined representation. (53) According to Schatzki,
employees would be free to select their representatives without being subjected to a political majority which is unsympathetic to the minority's desires . . . [C]onflicts created by individuals' need for fair treatment at the hands of the union could be greatly reduced if exclusivity were abandoned and employees were allowed to be represented by their own individually chosen agents. (54)
While acknowledging that a system of self-determined representation may reduce the value of the strike, (55) encourage strategic bargaining by employers, (56) and produce a network of unions segregated on the basis of race and/or gender, (57) these consequences are neither necessarily inevitable nor unequivocally undesireable. Thus, under a system of free representation, calling an effective strike may simply require more political coordination and compromise among the various unions. (58) Inter-union competition may ultimately benefit employees more than the employers who seek to divide them, for it may induce unions to demand more favorable terms in their effort to attract and maintain their memberships, while the opportunity to organize around race and gender based-interests may promote the elimination of discrimination. (59) On the whole, Schatzki predicts that if the relationship between unions and their members were more voluntary, employees would be more likely to participate in their unions, thereby increasing both the unions' understanding of employee preferences and their political power. Finally, and perhaps most significantly, a system of free representation would eliminate the need for Board involvement in the determination of "appropriate bargaining units." (60)
Each of the three models have advantages and disadvantages that require further examination. Thus, for example, Professor Silverstein's model of intra-union interest group certification suggests that groups would be certified on the basis of their common interest in a single issue, like a provision in a particular collective bargaining agreement. This may or may not work. Certain groups, like women of color, may share a whole range of interests, and yet be required continuously to reconstitute themselves as an interest group with respect to each issue -- a requirement that may prove too burdensome to be effective. On the other hand, single issue interest-group certification may avoid the institutionalization of rigid race/gender-based groups and is, in theory, more consistent with the vision of individual identity as multiple consciousness and intersecting group memberships, which informs my critique of the system of exclusive representation based on majority rule. (61)
Professor Guinier's model of proportionate interest representation through cumulative voting would potentially increase the political accountability of elected union officials, but might provide minority groups, like the Guardians in NAACP v. DPOA and the female clerical workers in Seep, with less direct control over the union's bargaining agenda than Silverstein's veto proposal. Professor Schatzki's proposal for self-determined representation has the unique advantage of externalizing the impact of democratizing the union's internal procedures. Since employers would be required to bargain in good faith with all of the unions chosen by their employees and any one of them would have the independent right to call a strike and to persuade any of the others to join them, employers would have an incentive to resolve inter-union differences and achieve an acceptable consensus. By contrast, under Silverstein's proposal, employers might simply refuse to meet the demands of the interest group and, if the union acquiesced, the group would appear to have no effective recourse. (62)
Despite their various differences, however, all three models share one common feature -- they all strive to resolve the problem of "fair representation" by facilitating the formation of self-identified collectivities and creating structural arrangements through which institutional power may be more effectively and equally distributed among these various self-determined groupings. Their common characteristic is, thus, to reorganize the structures of representational power. As a result, they provide an approach to the problem of "fair representation," which is entirely different from and infinitely more promising than the search for substantive standards and the dead-end debate it has spawned.
My review of these models has been admittedly sketchy, first because they have been so thoughtfully expounded by their original proponents, second because I believe the precise details of any legislative reform can be worked out later if there develops some general consensus that the redistribution of institutional power and the decentralization of representational authority is a more fruitful endeavor than the further articulation of substantive standards for the duty of fair representation, but most importantly because there is no such consensus. On the contrary, I find myself in the unhappy situation of being at odds with some of the most admirable and otherwise progressive labor law scholars in the country, (63) some of whom have already demanded to know: Why separate representation? Why women of color? Why not simply demand more appropriate standards for the duty of fair representation and Title VII or focus on the redistribution of interpretative power? (64)
These questions must be addressed before we can expect to develop any commitment to work out the various alternatives through which we could institutionalize the decentralization of representational authority. To address these questions I want to focus on what appear to be the two basic reasons underlying the almost uniform commitment to maintaining a centralized structure of representational power -- a commitment to the system of exclusive representation based on majority rule and the institutional suppression/demobilization of minorities both as individuals and as groups. The first basis for this commitment is a deeply philosophical, but ultimately inadequate, vision of political identity formation and the conditions of collective solidarity. This vision has been most explicitly articulated in a recent article by my colleague David Abraham. (65) His work will provide the vehicle for exploring the promise of this vision and, by drawing on the work of Third World Feminists, to attack its limitations, for Abraham's account presupposes that decentralized power structures necessarily produce strategic self-interested behavior rather than facilitating the articulation and resolution of genuine differences about what constitutes the "common good." (66)
The second basis for resisting these proposals is an instrumental concern that the decentralization of union decision-making authority will upset the balance of power between labor and capital to the detriment of workers as a class. (67) If this were entirely and necessarily true, then women of color would have very little reason to believe that the labor movement or its institutions could ever be an effective vehicle for liberation from the practices through which we are oppressed and exploited in the workplace. (68)
But this is neither entirely nor necessarily true, for these scholars underestimate the fragmenting impact of concentrated power and overstate the fragmenting impact of redistributed power. If race and gender are neither natural nor essential divisions of humankind, but rather socially constructed categories established and maintained through relations of power and power[lessness], (69) then the redistribution of power across race and gender groups is our only hope for finally and fully transcending these divisions. To put it differently: inter-racial conflict, like inter-gender conflict, is not caused by the fact that some people are white and others are not, nor by the fact that some are male and others are female, but rather by the fact that the concentration of power generates relations of subordination -- subordination generates resistance -- and resistance generates reaction. To put it bluntly: No power, no justice. No justice, no peace. (70) It is to these issues, I now turn.
1. Viewed individually and in isolation, there may be legitimate reasons for defending any one of the cases, but surely when one considers the cumulative impact of Emporium Capwell, ILA Baltimore, Handy Andy, Allegheny General Hospital, Donovan and Shultz, Abron, Goodman and King -- surely something is wrong when the cumulative impact of these otherwise inconsistent decisions is the systematic suppression of minority agency and the elimination of any effective recourse against the consequences of institutional powerlessness.
2. I have been repeatedly challenged to answer whether the solution is to "strengthen" Title VII (for example by recognizing the collective and individual identity of women of color as distinct remedial categories) or to change the structure of majoritarian decision-making under the NLRA, for example, by overruling Donovan (to permit affirmative action programs in union leadership elections) or ILA Baltimore (to permit the formation of separate locals). To me, it seems quite obvious that we need to do both, but, even more importantly, it is precisely the fact that reform is needed in both respects that raises the most important issues about the relationship between legal interpretation and structural violence, for if both Title VII and the NLRA must be reformed, it is only because, in both contexts, the rules have been interpreted at the expense of minority interests.
3. See Abron v. Black & Decker, Inc., 673 F.2d 798 (1982); Shoben and Crenshaw, supra n. *** .
4. Emporium Capwell, 420 U.S. 50 (1975); King v. Illinois Bell, 476 F.Supp. 495 (1978) (Title VII Section 704(a)'s protection of oppositional conduct is restricted by NLRA).
5. See Cathy Scarborough, Conceptualizing Black Women's Employment Experiences, 98 Yale L. J. 1457 (1989).
6. See ILA Baltimore, 460 F.2d 497 (1972) discussed supra n. ** and accompanying texts.
7. See generally Michel Foulcalt, POWER/KNOWLEDGE: Selected Interviews & Other Writings 1972-1977 (ed. Colin Gordon 1980); Steven Schnably, Beyond Griswold: Foucauldian and Republican Approaches to Privacy, 23 Conn. L.Rev. 861 (1991).
8. Iris Marion Young, JUSTICE AND THE POLITICS OF DIFFERENCE (1990).
10. The problem, of course, is that while social control may be effectively disbursed across multiple decision-making roles, these institutional roles are occupied for the most part by the same people with the same values. Members of groups which deviate from these norms come to occupy positions of authority and power only to the extent they assimilate themselves to the governing values. Cite Richard Delgado, essay in Michigan law review (summer 1991 or 1992) minority law professors. Individuals who assimilate and later change their minds are quickly deposed or isolated by their peers.
11. Reasons to doubt (karl Llewylyn, Bramble Bush; appointments process, but more importantly, norms of interpretation and difficulty for "lesser judges"] reasons to hope, new voices proposing new doctrines. All in all, since I'm not sure about the the impact redistributed interpretative power will really have, I argue for redistribution of institutional power as more direct and practical in the short terms [specifically some model of interest group representation].
12. Michael Harper & Ira Lupu, Fair Representation as Equal Protection, 98 Harv. L.Rev. 1211 (1985).
13. These standards include the principles of contract law, procedural due process and tort principles that have been used to elaborate the requirements of "fair representation" and to require unions to "faithfully assert employee interests secured by collective bargining agreements, . . . afford employees certain opportunities to be heard, and . . . [refrain from] negligent [conduct] in their protection of employee interests," Id. at 1216-7.
14. According to Harper & Lupu, "[t]he disarray in DFR case law has inspired commentary from two principal directions. One set of commentators has argued forcefully for acceptance of an unconstrained majoritarian model of union decision-making. Under this view, the administratively and judicially developed content of the DFR would disappear. Another set of commentators has gone off in precisely the opposite direction . . . [advocat]ing a more stringent DFR . . . . that, by limiting union discretion, appear to enhance the interests of individual employees." Id. at 1215-6.
18. Harper & Lupu, Fair Representation as Equal Protection, supra n. *** at 1225 n.57.
19. I use the term "constitutive relations" in the way Michael Sandel defined it in his critique of the Rawlsian original position, upon which Harper & Lupu would rest their model of "principled democracy." See Michael Sandel, "The Procedural Republic and the Unencumbered Self" in THE SELF AND THE POLITICAL ORDER 83-4 (e.d Tracy Strong 1992). According to Professor Sandel, the original position, that is "the veil of ignorance" attempts to establish a foundation for objective justice (independent of subjective visions of the good) by asking us "to imagine the principles we would choose to govern our society if we were to choose them in advance, before we knew the particular persons we would be -- whether rich or poor, strong or weak, lucky or unlucky -- before we knew even our interests or aims or conceptions of the good." According to Sandel, a major problem with this approach is that it posits what he calls the "unencumbered self." "[The unencumbered self] means there is always a distinction between the values I have and the person I am. . . One consequence of this distance is to put the self itself beyond the reach of its experience, to secure its identity once and for all. Or to put the point another way, it rules out the possibility of what we might call constitutive ends. No role or commitment could define me so completely that I could not understand myself without it. No project could be so essential that turning away from it would call into question the person I am."
20. Conceptual relations like: the relationship between individual and collective rights see supra n. *** and the relationship between group membership and representational adequacy, supra ***.
21. See infra n. *** [citing Alienikoff, A Case for Race Consciousness (discussing the treatment of "racial politics" in Fullilove and Crosen -- to warrant heightened scrutiny of affirmative action programs adopted by local governments that are politically accountable to black majority); Martin v. Wilkes, and the Civil Rights Act of 1991] and accompanying text.
24. Karl Llewelyn, THE BRAMBLE BUSH (quote).
26. See Balkin, Ideology As Constraint, 43 Stan. L.Rev. 1133, 1142 (1991).
31. Mannheim continues: "When the stage of democratization has been reached, the techniques of thinking and the ideas of the lower strata are for the first time in a position to confront the ideas of the dominant strata on the same level of validity. And now, too, for the first time these ideas and modes of thought are capable of impelling the person who thinks within their framework to subject the objects of his world to a fundamental questioning. It is with this clashing of modes of thought, each of which has the same claims to representational validity, that for the first time there is rendered possible the emergence of the question. . . ." Karl Mannheim, IDEOLOGY AND UTOPIA at 8-9.
32. See e.g. Pildes, Conceptions of Value in Legal Thought, 90 Mich. L.Rev. 4201, 4210 (1992) discussing Alasdair MacIntyre's famous argument in AFTER VIRTUE (1984) that "collective moral discourse and rational choice is impossible in conditions of modern societies precisely because people interpret conflicts against a background of distinct, rival normative traditions that are themselves incommensurable. For MacIntyre, the absence of a single, unified and shared moral tradition -- what less charitably might be called a totalistic moral environment -- in modern pluralistic societies makes moral conflict pervasively unresolvable."
33. Some would question the value of invoking the notion of "objectivity" at all. To me, the concept denotes a true relationship between what is and what ought to be, on the one hand, and what we believe to be and should be, on the other -- truth, in this context, having both epistemological and moral dimensions, whose power calls us all.
34. Alex Alienikoff, A Case for Race Consciousness, 91 Col. L.Rev. 1060 (1991); Wygant v. Jackson Board of Education, 106 S.Ct. 1842 (1986) (J. Stevens dissenting).
35. See Marc Fajer, Can Real Men Eat Quiche Together, supra n. ***.
36. James H. Cone, BLACK THEOLOGY & BLACK POWER (1969) reprinted 20th Anniversary Edition (1989). Marney Mahoney, Whiteness and Women, In Practice and Theory: A Reply to Catherine MacKinnon, unpublished manuscript (white women must recognize that they as much agent/oppressors as victims/oppressed).
37. "The course of democratic thought over the past two centuries or so makes plain that there is no agreement on the way basic institutions of a constitutional democracy should be arranged if they are to specify and secure the basic rights and liberties of citizens and answer to claims of democractic equality when citizens are conceived as free and equal persons . . . A deep disagreement exists as to how the values of liberty and equality are best realized in the basic structure of society." John Rawls, Justice as Fairness: Political not Metaphysical," THE SELF AND THE POLITICAL ORDER (ed. T.Strong 1992) 97-8.
38. What is not interdependent is equality and privilege, which is so often confused with liberty. Certainly, to achieve equality, we must reorganize the structures of privilege, but, from this perspective, it is privilege itself which reduces liberty and further imprisons the privileged in the delusions through which their privilege is rationalized.
39. A fourth model would be to redistribute representational slots to ascriptive representatives through affirmative action programs like the one invalidated by Donovan v. Illinois. I believe that the three models I examine below are all superior to the approach used in Donovan because they increase representational accountability and establish an institutional context for the potential formation of interracial and cross/gender collectivities. Thus, in the models I prefer, groups may but need not be formed or represented on the basis of race or gender. The basis of group formation will, instead, be the common experiences and interdependencies that genuinely bring us together.
40. Eileen Silverstein, Union Decisions on Collective Bargaining Goals: A Proposal for Interest Group Participation, 77 Mich. L.Rev. 1485 (1979).
41. The basic provisions of Professor Silverstein's proposal are explained more fully in Id. at 1519-1523.
42. Certification requests would, initially, be directed to the national leadership and would include three items: "(1) the names of the group leaders; (2) the common economic interest defining the group; and (3) the common negotiation issues on which the interest group disagrees with the union leadership position. Within some specified time period, the national union leadership would have to decide whether to certify the interest group. If denied certification, the interest groups could petition the NLRB. If the union granted certification, the interest group members would be assured a voice in the formulation of contract demands." Id. at 1520-1.
44. Id. at 1523-27 (providing hypothetical); Id. at 1527-1538 (assessing alternative regulatory mechanisms).
45. See e.g. Matthew Finkin, The Limits of Majority Rule in Collective Bargaining, 64 Minn. L.Rev. 183, 199-206 (1980)(reviewing and rejecting the rational decisionmaking model of fair representation); Ross Cheit, Competing Models of Fair Representation: The Perfunctory Processing Cases, 24 B.C.L.Rev. 1, 28-33, 39-43 (1982) (due process model of fair representation requires union to give reasoned decision in every grievance case and implied duty to conduct adequate investigations and provide opportunity to be heard); Vandervelde, A Fair Process Model for the Union's Fair Representation Duty, 67 Minn. L. Rev. 1079 (1983) (similar).
46. Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 Mich. L.Rev. 1077 (1991); No Two Seats: The Elusive Quest for Political Equality, 77 Vir. L.Rev. 1413 (1991).
47. See Guinier, No Two Seats, 77 Va. L. Rev. at 1437-1143. Professor Guinier identifies five basic assumptions. First, "[s]imple majority rule assumes that the majority and minority are fungible, meaning that the outcome of voting procedures depends solely on the shape of the distribution of the preferences, and not on which voters hold certain preferences. The scheme assumes further that the minority will support themajority's decision for reasons of stability, efficiency, reciprocity and accountablity." Id. at 1437. These assumptions presuppose, among other things, the lack of a permanent majority. "The 51% are legitimate in the eyes of the 49% because the 49% has the opportunity to attract defectors and become the next governing majority." Id. Under pervasive and prevailing conditions of racial bloc voting, however, these assumptions are highly questionable. "[A] system in which a permanent and homogenous majority consistently exercises disproportionate power is neither stable, accountable, nor reciprocal." Id. at 1441.
48. Id. at 1458-1482. (reviewing the ways in which proportionate interest representation structures would promote political participation, representational responsiveness and inter-group coalitions); See also Guinier, The Triumph of Tokenism, 89 Mich. L. Rev. at 1136-1153.
49. According to Guinier, the threshold of exclusion would be based on a mathematical calculation using the formula: "one divided by one plus the number of open seats plus one," which determines the minimal number of votes necessary to elect a candidate. Id. n. 186.
50. Id. n. 187. Because of the lowered threshold for election, "any politically cohesive interest constituency sufficiently numerous to organize [the required percentage] of voters cannot be denied representation. White women or moderate white voters normally subsumed by the majority or Latino voters sufficiently numerous but dispersed may also gain representation without straining their political alliances with blacks."
51. Guinier, No Two Seats, 77 Va. at 1463.
52. Although an in depth review is beyond the scope of this Article, preliminary research suggests that unions could voluntarily adopt a system of proportional representation under the LMRDA, see e.g. Lear Siegler Inc., v. International Union, UAW, 287 F.Supp. 692 (1968) aff'd in part, rev.'d in part, 419 F.2d 534 (1969) (separate ratification procedures for skilled workers was permissible as part of union's effort to adequately and fairly represent all employees within the bargaining unit); however, to mandate proportional representation and make it effective would require legislative modification of the LMRDA 29 U.S.C.A. § 411 (regulates voting only in cases where union constitution requires vote). This approach would avoid the obstacles, which cases like Shultz and Donovan, supra n. ** and accompanying texts have created for affirmative action programs designed to redistribute leadership positions.
53. Shatzki, Majority Rule, Exclusive Representation and the Interests of Individual Workers: Should Exclusivity by Abolished? 123 U. of Penn. L.Rev. 897 (1975).
54. Id. at 903. Professor Schatzki's proposal is actually rather detailed. It provides that: (1) every employee should be permitted to select her own representative; (2) the employer would be obligated to engage in good faith collective bargaining with each of the agents authorized by that employer's employees; (3) unions could engage in coalition bargaining, and the employer would be required to bargain on that basis; (4) restrictions would be placed on the number of times employees could switch bargaining agents; (5) a procedure would be implemented to inform employer of the unions to which its employees belonged; (6) unions would be free to refuse to represent the employees of a single employer, but once the union agreed to represent one or more employees of an employer, they would not be allowed to refuse to represent any employee of that employer [sure beats Allegheny General Hospital]; (7) unions would be able require any represented employee to join the union; the sanction for not joining would be to exclude the individual from enjoying the contractual benefits of the collective bargaining process in which the union engaged. Id. at 919. Items (4) and (7) clearly [and, I would argue, favorably] distinguish Schatzki's proposal from the voluntary assocationalism advocated by scholars like Charles Fried, Individual and Collective Rights in Work Relations: Reflections on the Current State of Labor Law and Its Prospects, 51 U.Chi.L.Rev. 1012 (1984).
55. "[E]ach employee designates the union of his or her choice or designates no union at all. Each union or individual then negotiates with the employer (or, a representative committee of all the involved union negotiates). Of course, each union does not have the allegiance of any employees other than those it represents. The economic pressure which it can bring to bear is limited to the impact those employees can create by their strike or threat of striking. Since all the employees will not strike, the impact of the strike will be less, and the employee gains will be less." Id. at 927.
56. The employees' exercise of free choice may result in separate representation, which in turn may induce employers to attempt to cut the best deal with the weakest union and force the deal on stronger unions. Id. at ***.
58. Compare Charles Hecksher, THE NEW UNIONISM: EMPLOYEE INVOLVEMENT IN THE CHANGING CORPORATION (19**) (goal of labor movement must be to develop a broader basis of power including an expansion of individual and group rights which secure the basis for new forms of collective action).
59. As Schatzki observes, "the competing value of relatively more freedom of choice, especially if it is somewhat informed, cannot be ignored. . . The black employees' views that they are being discriminated against may be valid, although unprovable. Moreover, the presence of several unions should provide employees more information about their choices for representation than they receive under the present system. To that extent, a choice based on racial considerations becomes more rational (in the two senses, at least, of informed choice and of eradicating perceived racial discrimination). It would be my hope that, as the competing unions perform, employees would grow away from such racial choices, as other factors take on more importance to the employees and the racial factor less." Id. at 934.
60. According to Schatzki, in determining appropriate units, "the Board does not consult the employees or attempt to ascertain their wishes. Rather, the Board looks to many "objective" factors in any given case to make the determination. While some factors may indirectly reflect individual employee preferences, and while much of the Board rhetoric in defining the appropriate unit is about the community of interests among the employees, in truth most of the factors . . . reflect either the structure the employer has given its business or the wishes of the petitioning labor organization, or both. Thus, the employees' interests are usually not relevant to the identification of the appropriate unit's profile. The Board assumes that there is -- or is not -- a community of interests among certain employees, but a conclusion on this issue does not reflect or have any relationship to the individual employees' own views of their community of interests. The determining factor is the Board's view of what ought to be, or might be, or is, a community of interests among employees." Id. at 897-8. If this is a fair assessment of the Board's "appropriate bargaining unit" determinations, then Allegheny General Hospital is all the more disturbing. Indeed, Allegheny General Hospital, supports Schatzki's claim, for, in that case, job classifications that would have been subject to the provisions of the Equal Pay Act if performed by workers of the opposite sex were nevertheless excluded from the certified unit. See supra n. *** and accompanying text.
61. See supra n. *** and accompanying text. [begining with Angela Harris quote in section on Emporium Capwell] See infra generally Part III B.
62. See e.g. Silverstein, 77 Mich. L. Rev. at 1526. If a union decides that an interest group's veto "is beyond the legitimate scope of their interest," it may refuse to recognize the veto, and the group's only recourse is to appeal to the NLRB, an appeal which would probably fail in the face of the union's claims that the employer would not budge. See Seep, supra n. *** (failure to achieve bargaining demands of female clerical workers did not violate DFR where failure was due to employer's intransigence).
63. See David Abraham, Individual Autonomy, supra n. ***, discussed infra n. *** and accompanying text; Michael Fischl, Self, Others and Section 7: Mutualism and Protected Protest Activities under the NLRA, 89 Col. L.Rev. 789 (1989); Joel Rogers, Divide and Conquer: Further Reflections on the Distinctive Character of American Labor Law, 1990 Wis. L.Rev. 1; Katherine Stone, Labor and the Corporate Structure: Changing Conceptions and Emerging Possibilities, 55 U.Chi.L.Rev. *** (1983).
64. The short answer is that the redistribution of interpretative power may simply not be adequate to achieve objective justice. We have seen, for example, that the duty of fair representation operates as a structural slot that is repeatedly invoked in allocating institutional power without requiring any examination of the duty itself or any consideration of the structure of power[lessness] it legitimates. Judges work with inherited doctrines and cannons of construction. Embedded in both are a whole range of assumptions and normative commitments that determine how a court will read a case and limit the uses to which most judges can put a particular case. This "unitary consciousness" marks the limits of any strategy of social transformation that relies on the appointment of a token number of women and nonwhites to positions of interpretative power as a vehicle for developing a multiple legal consciousness. In other words, rather than ensuring "objectivity," the fact that legal doctrine is, for any individual judge, an external given or "restraint," that is, the law's artifactual quality ensures the continued reconstitution of the law's "subjectivity," except by the most self-conscious and analytically proficient judges -- and then only to the extent their decisions are sustained on appeal. The long answer is another Article.
65. David Abraham, Individual Autonomy, supra n. ****.
66. As Professor Casebeer has written: "In opposing to the universality of dialougue an ideal of critical social integration, the focus shifts to what to become collectively, and is thus distinguished from the old notions of integration founded in economic reductionism. The problematic of this stance seems to require conceiving of a collective experience of decentered subjects without a concept of the universal which destroys difference. That is, a meaning of collective experience which is the underpinning of individual and social differences within an equality which doesn't restrict the significance of those differences. . . In this way a universal need to achieve recognition in authentic social meaning for an individual set of life experiences is subsumed in the social integration of an unalienated political organization. . . [I]ntegration on these terms respects mutuality of difference more than a communicative universality which, because it lacks an account of power, cannot escape the disruption implied by a division of labor necessary to reproduce the conditions in which dialogues is historically embedded." Kenneth Casebeer, Work on a Labor Theory of Meaning (1988) unpublished manuscript on file with the author.
67. See Abraham, Individual Autonomy, supra n. *** ; Stone, Labor and the Corporate Structure, 55 U.Chi.L.Rev. 73 (1988); Harper & Lupu, Fair Representation as Equal Protection *** Harv. L. Rev. *** (1985); Emporium Capwell.
68. In other words, the short answer to these "instrumental" concerns is simply that I cannot accept a vision of community which is so threatened by the prospect of my empowerment that it must constitute my efforts to institutionalize my equality as a destruction of community. If your community can exist only on the basis of my inequality and power[lessness], then your community ought, in truth, to be destroyed.