Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G. [1990]

About: This article is published in Buffalo Law Review.The article was published on 1990-01-01 and is currently open access. It has received 157 citations till now. The article focuses on the topics: Subordination (linguistics) & Rhetorical question.

Summary

LuCIE E. WHITE*

• 48 * Assistant Professor, University of California at Los Angeles School of Law.
• My research was supported by grants from the Academic Senate of the Unversity of California at Los Angeles.

BUFFALO LAW REVIEW

• According to the theory of representative democracy, she should feel herself a participant in the process that creates welfare policy.
• '35 Feminist scholars are beginning to expose the concrete ways that a welfare policy that is generated in this bureaucratized discussion has reflected and sustained women's subordination.
• 1 37 Furthermore, the AFDC program was unique among New Deal welfare programs in requiring claimants to open up their sexual lives to the scrutiny and control of welfare workers.
• At the fair hearing, it was Mrs. G's voice, rather than her behavior, which was compelled to assent to the bureaucratized-and arguably also gendered-logic of welfare.
• Conley and O'Barr observe that even in small claims proceedings, where rules of evidence do not apply, judges make their decisions on the basis of technically relevant facts, screening out other aspects of litigants' stories.

B. Challenging the Imagery that Sustains Subordination .. 55

• According to this vision, "procedural justice" is a normative horizon rather than a technical problem.
• Familiar cultural images and long-established legal norms construct the subjectivity and speech of socially subordinated persons as inherently inferior to the speech and personhood of dominant groups.

THE HEARING OF MRS. G.

• Own self-governance-not by overt legal barriers, but by deeply rooted conditions of social inequality.
• L. REV. 1129 (1986)(discussing possible normative grounds for the law's interference with the expressed preferences of individual citizens).
• Habermas' theory of communicative action provides a powerful possibility, particularly if the insights of his feminist critics are also taken into account.
• The definition of retaliation and the methods of proof must be designed from the claimant's, rather than the perpetrator's point of view.
• In order to feel safe to speak out at a hearing, however, Mrs. G. needs more than post hoc remedies against overt acts of retaliation.

I. THE SHAPING OF SUBORDINATE SPEECH

• The very term for the male sex organ, "testis," is linked etymologically to the root for "testimony" and "testify"-bearing witness, reliably, truthfully, authoritatively, in the public realm, about events in the world.
• Thus, the concepts of maleness and witnessing are linked in the very language the authors use: in the deep logic of their lexical system, 2 to be a "real" witness one must, quite literally, have balls.

In contrast to this concept of the male as witness, the concept Wo-

• In this section, I draw on familiar misogynist imagery to suggest that systemic subordination is often expressed through deep-and perhaps even subconscious-assumptions that the disfavored group has deviant capacities for human speech.
• In reading this section, the reader must be aware of the problems inherent in abstracting one dimension of subordination, such as gender, from the complex experience of subordination in real lives.
• According to the Oxford English Dictionary, the Modern English term "testis" has been assumed to have an etymological identity with the Latin term "testis," which meant witness.
• In sharp contrast to the authoritative speech of the male, Woman's speech cannot be trusted, in either of her contradictory personae.

16. Some feminist philosophers have made the sweeping argument that the form of logic

• Through which knowledge has been articulated in male-dominated, or "phallologocentric" European civilization presumes gender domination, the denial of the bodily experience and language capacity of women, in order to conceal its own internal contradictions.
• See, e.g., L. IRIGARAY, SPECULUM OF THE OTHER WOMAN (G. Gill trans.
• Cultural images that construct Woman's voice as dangerous and fearful rationalize the social control of real women.
• 22 Yet these theorists underestimate the capacity of human speech.

VESE, FROM REBELLION TO REVOLUTION: AFRO-AMERICAN SLAVE REVOLTS IN THE MAKING OF THE MODERN WORLD (1981).

• Recent minority legal scholars have emphasized this threat that subordinated peoples always pose to their dominators.
• The excluded groups were generally African Americans, Native Americans, people of mixed race, and sometimes Asians.
• The court, extending the statute to bar the testimony of the Chinese witnesses, reversed Hall's conviction.

In this racist vision, non-whites were imagined to be so radically

• Deviant in their essential nature,3' that it was unthinkable to allow them to speak out on matters that might affect whites.
• But their talk must not command any power in the world of white people.
• Thus, competency doctrine both rationalized and 28.
• The case is discussed in McClain, The ChineseStruggle for Civil Rights in Nineteenth Century America: The First Phase, 1850-1870, 72 CAL.

38. At various times, categorically "incompetent" groups have included children, Jews, heretics

• And pagans, slaves, the blind, the deaf and dumb, imbeciles and the insane, and poor people.
• Villeinage refers to that class in medieval society which did not hold land in their own right, but were tenants bound to the service of the king.

41. Under the common law doctrine of coverture, married women could not own property or

• Coverture was reformed in most American jurisdictions by the mid-nineteenth century.
• The rationale for the exclusion of wives' testimony in such cases was that the legitimate legal interests of married women were identical to those of their husbands.

GUISTIC SEX ROLES IN CONVERSATION: SOCIAL VARIATION IN THE EXPRESSION OF

• Their work suggests that "women's language" is best understood as the array of speech strategies that women-as well as other subordinated speakers-have devised to manage verbal encounters with more powerful Others.
• [Tihey tended to be men who held either subordinate, lower-status jobs or were 1990] THE HEARING OF MRS.
• Using simulated jury trials, O'Barr found that jurors are likely to assess speakers who use "powerless" language as less credible, competent, intelligent, or trustworthy than speakers who use typically "male" speech patterns.68 W. Lance unemployed.").
• Rules versus Relationships, supra note 65, at 2-3 ("A relational account emphasizes status and relationships, and is organized around the litigant's efforts to introduce these issues into the trial.

17 (1977)(suggesting that jurors' presuppositions about the speaker might affect their credibility as-

• It is not merely ordinary witnesses whose credibility suffers because of audience stereotypes.
• Expert witnesses, female lawyers, and even female jurors are also victims of the process.

78. This story is based upon my work as a legal aid lawyer in North Carolina from 1982 to

• Certain details have been changed to avoid compromising client confidentiality.
• She would get very excited when she spoke, breathing hard and waving her hands and straining, like she was searching for the right words to say what was on her mind.
• There were two of us in the office, myself and a local woman who had spent a few years in Los Angeles, working as a secretary and feeling free, before coming back to the town to care for her aging parents.
• Not too long ago they, and most of the other Black families I worked with, had been the property of their adversaries - the local landowners, businessmen, bureaucrats, and lawyers.

In the late 1960s, the town had erupted into violence when a local

• Youth who had read some Karl Marx and Malcolm X led some five thousand people down the local highway in an effort to integrate the county swimming pool.
• Since World War II, the town had been a real backwater for Black people.
• Thinking that the emergency had been dealt with, I scheduled an appointment for Mrs. G. for the following Tuesday and told her not to sign anything or talk to anyone at the welfare office until I saw her again.
• Then she got the overpayment notice, asking her to repay to the county an amount equal to her insurance award.
• Under AFDC law, the insurance award was considered a "lump sum pay- 1990] THE HEARING OF MRS.

My negotiations failed. The county took the position that the worker

• Should have suspended Mrs. G's AFDC as soon as the client had reported the insurance payment.
• This mistake was "regrettable," but it didn't shift the blame for the overpayment.
• Mrs. G.-and not the county-had received more welfare money than she was entitled to.
• When county officials refused, and the details of this conversation did not show up in the client's case file, the state declined to intervene.
• Study commissioned by Congress and performed by the National Academy of Sciences in 1988.

86. In public benefit cases, the courts have generally held that the doctrine of estoppel cannot be

• Used against the government when a government agent's misinformation results in a claimant's loss of benefits.
• Lower court cases have allowed estoppel against the government when an official gives a claimant erroneous factual information which the claimant was not in a position to identify and avoid, and when compensating the claimant will neither undermine important federal interests or deplete the public fisc.
• The state implemented the exception for "life threatening circumstances" through D.S.S. Administrative Letter No. IPA-8-84 (DSS-3430)("Lump Sum Payments")(March, 82).
• The seventh item on the list authorizes the "county director or his designee" to determine other life-threatening situations on a case by case basis.

88. I use "she" because virtually all of my clients who received AFDC benefits were single

• They account for an insubstantial percentage of the recipient pool: in my four years of welfare advocacy, I did not encounter any single fathers on AFDC.
• The necessities story would force Mrs. G. to grovel, but it would give both county and state what they wanted to hear-another "yes sir" welfare recipient.
• Here I was, thinking that what I was doing was educative and empowering or at least supportive of those agendas, when all my efforts worked, in the end, only to teach her to submit to the system in all of the complex ways that it demanded.

I asked for the list she had promised to make of all the things she

• The authors rehearsed her testimony, first about her conversation with her worker regarding the insurance award and then about the Kotex and the shoes.
• Because Mrs. G. had little voice in the political process that set the substantive terms of her welfare [Vol. 38 1990] THE HEARING OF MRS.

G. to conform her words to the elements of the "lump sum" rule, the

• These observations are based on my experience representing AFDC claimants.
• In all of her dealings with the welfare system-whether she was filling out forms at the welfare office, answering questions at a hearing, or casting her vote for those with the power to write the rules-Mrs. G. felt boxed in.
• See also, supra note 8 and accompanying text.
• See also Habermas, Law as Medium and Law as Institution, in DILEMMAS OF LAW IN THE WELFARE STATE 210-11 (G. Teubner ed. 1985)(Bureaucratic implementation requires that concrete human life histories "be subjected to violent abstraction not merely because [they] have to be subsumed under the law but in order that [they] can be handled administratively.".

163. For an elaboration of the idea that expressive activity should be understood, in our civic

• Culture, as politically meaningful action, see Karst, Boundaries and Reasons: Freedom of Expression and the Subordination of Groups (1989)(unpublished manuscript on file with the author).
• The authors have been taught to assume without question that the constitution should mandate an impermeable wall between the legislature and the courts.
• And the authors accept that "due process" has been properly parsed into separate "substantive" and "procedural" doctrines that set different minima for legitimacy - legislative rationality and adjudicative regularity - in the two spheres.
• Jurgen Habermas addresses the normative question in his theory of communicative rationality.
• See M. MINOW, Separation of Powers, Powers in Relationships, in MAKING ALL THE DIFFERENCE (critiquing and reformulating the constitutional doctrine of separation of powers from a feminist perspective).

171. Theoretical work by feminist scholars on legal remedies for battered women can provide

• Some guidance on doctrinal innovations that might surmount these problems.
• See Conley, O'Barr & Lind, supra note 61, at 1395-99, for speculation about how this proposal might work in the courtroom.
• To dismantle the bureaucratic barrier-to imagine an alternative template for the organization of complex, "post-industrial" institutions-entails a much more daring reconstructive project than simply to realize the promise of formal equality.

Frequently asked questions

Q1. What does Mrs. G. need to feel safe to speak out at a hearing?

In order to feel safe to speak out at a hearing, however, Mrs. G. needs more than post hoc remedies against overt acts of retaliation. 

Q2. What did the exclusion of women's testimony help to make?

At the same time, the exclusion of their testimony against whites helped make it easier for the dominant group to use violence against their subordinates without risking legal sanctions. 

Q3. Why is the link between gender and the stigmatized group so important?

Because of the close link between language capacity and their concepts of personhood, it may be that all subordinating ideologies presume that the stigmatized group has an inferior or deviant capacity for speech. 

Q4. What is the reason why people are vulnerable to having their actions rejected?

The inability to produce a conventional story would leave individuals vulnerable to having truthful accounts of their actions rejected. 

Q5. How does the author's story affect the law's formal promise of procedural justice?

Through her story the authors can trace how the complex realities of social inequality undermine the law's formal promise of procedural justice. 

Q6. What would be the way to help lawyers prepare their cases?

Experts might also work behind the scenes, helping lawyers take account of language and cultural barriers in preparing their cases, or providing the court with guidance on the venue issue or the jury selection process. 

Q7. What is the story of a poor woman trying to use the procedures that the system affords?

The essay tells the story of such an attempt-a story of enforced silence, rhetorical survival, and chance, as a poor woman engages in an administrative hearing at a welfare office.