Identifying Law's Unconscious: Disciplinary and Rhetorical Contexts

Each time I tried to do a piece of theoretical work, it had as its starting point elements of my own experience and was always in relation to processes that I saw going on around me. It's because I thought I could recognize in the things I saw, in the institutions that I was dealing with, in my relations with others, some cracks, mute tremors, malfunctionings, that I undertook a particular piece of work - some fragments of autobiography.' Each of us, of course, thinks and writes on the basis of our own experiences and in relation to what each of us sees going on. Several years ago I attended a paper presentation at a conference, after which a member of the audience responded critically to the presenter with the remark, "Your paper tells me more about you than the topic you addressed." Not surprisingly, perhaps, the theme of the conference was psychoanalysis and the respondent an analyst (thus, the joke about two analysts meeting on the street, one saying, "Hello, how am I today?" and the other answering, "Fine, how about me?"). Nevertheless, while a scholarly paper on any topic should reveal something more than the scholar herself, some degree of self-revelation is inevitable. Indeed, the turn to personal narratives in legal scholarship is theoretically justified as an acknowledgment that we are each socially situated and constructed, that we each have a history, and so forth. I like the texts of Jacques Lacan, and I think that his theory of the human subject is both compelling and useful in the analysis of legal processes and institutions. If I did not like Lacan's texts, I might nevertheless have written Lacan and the Subject of Law,2 but the subtitle would have been something like "A Useless Enterprise" (there is an industry in, and impliedly a market for, books criticizing Lacan). Similarly, if I spent as much time reading Foucault as I have Lacan, this conference might be titled "Foucault and the Subject of Law." My point is not simply the obvious one that I did study Lacan (and not Foucault) and that I became a Lacanian (and not an anti-Lacanian), but also that my interest in Lacan says something about me and not just about Lacanian theory. Norman Holland, a critic of Lacan, actually suggests, quite rudely I think, that Lacanian theory is attractive to some because it allows one to do anything (immoral) one wants.3 While that point is not well taken, Lacan's notion of the subject as constituted in symbolic and imaginary relations -- through networks of language and by identifying with other people - does imply that I am not a wholly rational and autonomous subject freely exercising my objective preferences. Rather, I am positioned in such a way that Lacanian theory is attractive. And, moving from self-criticism to social criticism, everyone else is positioned in ways that matter when they hear about Lacan. In Part I below, I discuss the recent opinion by the United States Court of Appeals for the First Circuit in Cohen v. Brown University4 because I think it is a very Lacanian analysis of Title IX's requirement of gender equity in college athletics.5 I use the word "Lacanian" loosely, as Terry Eagleton did in referring to a Lacanian Irish Rebel song,6 to refer to the court's conclusion that evidence of women's lack of interest in sports must be viewed with suspicion: rather than indicating a lack of discrimination against women's sports programs, the lack of interest may signal the "historical lack of opportunities to participate in sports."7 The Cohen opinion provides an opportunity not only to consider the relevance of Lacanian theory for the types of problems that arise in law, but also to describe certain aspects of Lacanian theory as background for the remainder of this essay. In Part II, I consider the question of why I chose, in my book on Lacan, to begin with a catalog of criticisms of Lacan - with what one reviewer called a "tone of slightly embarrassed defense. "8 The reasons I give may end up saying more about me than about Lacan, but that too becomes a very Lacanian exercise in legal scholarship. …