Understanding "Depolicing": Symbiosis Theory and Critical Cultural Theory
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Scholarly Commons @ UNLV Boyd Law Scholarly Works Faculty Scholarship 2002 Understanding "Depolicing": Symbiosis Theory and Critical Cultural Theory Frank Rudy Cooper University of Nevada, Las Vegas -- William S. Boyd School of Law Follow this and additional works at: https://scholars.law.unlv.edu/facpub Part of the Law and Philosophy Commons, Law and Race Commons, Law and Society Commons, and the Law Enforcement and Corrections Commons Recommended Citation Cooper, Frank Rudy, "Understanding "Depolicing": Symbiosis Theory and Critical Cultural Theory" (2002). Scholarly Works. 1130. https://scholars.law.unlv.edu/facpub/1130 This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository administered by the Wiener-Rogers Law Library at the William S. Boyd School of Law. For more information, please contact [email protected]. UNDERSTANDING "DEPOLICING": SYMBIOSIS THEORY AND CRITICAL CULTURAL THEORY © 2003 Frank Rudy Cooper Doctrinal analyses help us understand what law does. Identity theory' helps us understand why law operates in certain ways. Cultural studies 2 can help us understand that where law operates is crucial to both how it operates, and on whom. Nancy Ehrenreich's Subordination and Symbiosis: Mechanisms of Mutual Support Between Subordinating Systems3 is especially valuable because her symbiosis theory expands identity theory. Ehrenreich turns our attention to the subjectivities4 of those who are partly subordinated but mostly privileged-those © 2003 Frank Rudy Cooper * Assistant Professor, Villanova University School of Law. B.A., Amherst College, 1991; J.D., Duke, 1995; law clerk to Hon. Solomon Oliver, Jr., 1995-97. I dedicate this essay to my valued friend Daniella Courban. I thank Nancy Ehrenreich, Dean Mark Sargent, Michelle Anderson, Tina Beyene, Les Book, Mike Carroll, Jerome McCristal Culp, Jr., Danielle Kie Hart, Emily M.S. Houh, Lisa Iglesias, Ann Juliano, Delario Lindsey, Cristal Lint, Beth Lyon, Greg Magarian, Oluseyi Olubadewo, Naz Pantaloni, Michelle Pistone, Grayce Smith, Richard Turkington and the staff of the UMKC Law Review. All remaining errors are my own. Preparation of this article was supported by Villanova University School of Law's generous provision of a summer stipend and other assistance. 1I define identity theory broadly as including at least Critical Race Theory ("CRT'), LatCrit theory, AsianCrit theory, Feminist theory and Queer theory. See, e.g., CROSSROADS, DIRECTIONS, AND A NEW CRITICAL RACE THEORY (Francisco Valdes, Jerome McCristal Culp, Jr. & Angela Harris eds., 2002) (combining CRT, LatCrit, AsianCrit, Feminist and Queer theories as CRT). During a Cultural Studies and Identity Theory panel at the 2002 Law, Culture and the Humanities conference, Neil Gotanda and Katherine Franke reminded me that practitioners of CRT have not always been welcoming of Feminist theory and Queer theory. I simply argue that as a matter of intellectual trajectory, CRT, especially intersectionality and multidimensionality theories,. has begun to merge with feminist theory and Queer theory. See generally Francisco Valdes, Afterword: Beyond Sexual Orientation in Queer Legal Theory: Majoritarianism,Multidimensionality, and Responsibility in Social Justice Scholarship, or Legal Scholars as Cultural Warriors, 75 DENY. U. L. REV. 1409 (1998) (linking critical race theory to Queer theory and other methodologies). 2 Cultural Studies is the interdisciplinary field devoted to analyzing how discourses operate in popular culture. See Frank Rudy Cooper, The Un-Balanced Fourth Amendment: A Cultural Study of the Drug War, Racial Profiling and Arvizu, 47 VILL. L. REV. 851, 855-64 (2002) (describing methodology and applying it to drug war expansion of Terry doctrine). See generally REPRESENTATION: CULTURAL REPRESENTATIONS AND SIGNIFYING PRACTICES (Stuart Hall ed., 1997) [hereinafter REPRESENTATION] (describing field and methodology); GENDER, RACE & CLASS IN MEDIA (Gail Dines & Jean Humez eds., 2d ed. 2003) (collecting cultural studies of identity); Symposium: Beyond Legal Realism?: Cultural Studies of Legal Scholarship, 13 YALE J.L. & HUMAN. 3 (containing articles debating methodology); LAW IN THE DOMAINS OF CULTURE (Austin Sarat & Thomas Kearns eds., 1998) (collecting essays). 3 See Nancy Ehrenreich, Subordination and Symbiosis: Mechanisms of Mutual Support Between Subordinating Systems, 71 UMKC L. REV. 251 (2002) (expanding intersectionality theory to include analysis of mutual reinforcement of subordinating systems; object of this Symposium). 4 Subjectivity is the perception of being a distinct and coherent actor with a specific place in society. See KEY CONCEPTS IN CULTURAL THEORY 388-90 (Andrew Edgar & Peter Sedgwick eds., 1999) (defining "subjectlivity"). See, e.g., Luis Althusser, Ideology Interpellates Individuals as Subjects, in IDENTITY: A READER 31 (Paul du Gay, Jessica Evans & Peter Redman eds., 2000) 355 UMKC LAW REVIEW [Vol.71:2 who accept their own oppression in return for the "compensation" of being able to use the law to subordinate others.5 Nonetheless, symbiosis theory cannot fully explain why a practice develops in some places but not others even though the relevant identities are the same.6 To understand the difference context makes, we must use cultural studies to analyze how discourses7 were constructed and translated into practices in particular contexts. We need a "critical cultural theory" methodology8 that synthesizes doctrinal, identity theory, and cultural studies tools. By a critical cultural theory methodology, I mean that we should start with doctrinal analysis that reveals implicit assumptions about identity. We should (contending ideology "hails" individuals as "subjects" with particular place in social order); Jacques Lacan, The Mirror Stage, in IDENTITY: A READER, supra, at 44 (contending "meconnaissances" (misrecognitions) constitute identity); DAVID CAUDILL, LACAN AND LAW 73 (1997) (utilizing Lacan, critiquing Schlag's conception of legal subjectivity). 5 See Ehrenreich, supra note 3, at 291 (defining "compensatory subordination"). 6 For example, police refusal to proactively investigate crime in racial minority communities- "depolicing"-has developed in some cities, but not others. See, e.g., Kery Murakami, Racial Profiling: A Fine Line, SEATTLE POST-INTELLIGENCER, April 29, 2002, at Al (describing depolicing in Seattle); Steve Miller, Cincinnati in Grip of a Crime Wave Months After Riots: Profiling Fears Cited as Shootings Rise, WASH. TIMES, July 18, 2001, at A6 (describing depolicing in Cincinatti). See also Frank Rudy Cooper, Terry's See-Saw Effect: Identity, Doctrine and Cultural Context, February 18, 2003 (unpublished manuscript, on file with author) (arguing that in certain cultural contexts, Terry doctrine's grant of excessive discretion leads to x-treme racial profiling, then racial controversy over policing, then depolicing; applying theory to NYPD refusal to intervene in sexual assaults at 2000 New York City Puerto Rican Day Parade). I refer to a "see- saw" effect rather than a "seesaw" effect to emphasize the dialectical nature of the swing between racial profiling and depolicing. I distinguish the racial profiling deemed typical in big cities from its most egregious examples by calling the latter "x-treme racial profiling." 7 "Discourses" are stories describing the meaning of social events. See KEY CONCEPTS IN CULTURAL THEORY, supra note 4, at 117 (defining "discourse"). 8 See Cooper, supra note 2, at 860 n.63 (suggesting developing critical cultural theory, citing precursors). See also Leonard M. Baynes, WHITEOUT: The Absence and Stereotyping of People of Color by the Modem Media, __ ARIZ. L. REV. - (forthcoming 2003) (contending media create negative popular attributed identities of people of color); Emily M.S. Houh, A Critical Intervention: Toward an Expansive Equality Approach to Doctrine of Good Faith and FairDealing in Contract Law, - CORNELL L. REV. - (forthcoming 2003) (applying critical race theory and Ccultural studies to contract law); Kenneth B. Nunn, Race Crime and the Pool of Surplus Criminality: Or Why the War on Drugs Was a War on Blacks, 6 J. GENDER, RACE & JUST. 381 (2002) (analogizing constant availability of racial minorities for criminal demonization to Marx's surplus worker concept); Anupam Chander, Diaspora Bonds, 76 N.Y.U. L. REv. 1005 (2001) (using cultural studies and identity theories to analyze diasporas--"groups that maintain ties to a homeland while living abroad"); Madhavi Sunder, Cultural Dissent, 54 STAN. L. REV. 495 (2001) (applying cultural studies and identity theories to anti-gay cases); Neil Gotanda, Comparative Racialization: Racial Profiling and the Case of Wen Ho Lee, 47 UCLA L. REv. 1689 (2000) (applying cultural studies and identity theories to stereotypes of Asian Americans as foreign); Elisabeth Iglesias, Rape, Race and Representation: The Power of Discourse, Discourses of Power, and the Reconstruction of Heterosexuality,49 VAND. L. REV. 869 (1996) (comparing cultural representations of rape by race); Joan W. Howarth, Representing Black Male Innocence, I J. GENDER RACE & JUST. 97 (1997) (utilizing critical race theory and cultural studies to analyze convictions); Kenneth B. Nunn, The Trial as Text: Allegory, Myth and Symbol in the Adversarial Criminal Process-A Critique of the Role of the Public Defender and a Proposalfor Reform, 32 AM. CRIM. L. REV. 743 (1995) (applying cultural studies and identity theories to trial process). 20021 UNDERSTANDING "DEPOLICING" then use identity