1 Clifford Geertz, “Local Knowledge: Fact and Law in Comparative Perspective,”in Geertz, Local Knowledge: Further Essays in Interpretive Anthropology 167, 170 (New York: Basic Books, 1983).Google Scholar

2 Id. at 173.Google Scholar

3 Whether there has been increased sensitivity on issues of class is not so clear. Since Americans have generally been uncomfortable talking about class, the new manners of public discourse that create formal equality by avoiding discussion of glaring inequalities perpetuate the ideology that America is a classless society after all.Google Scholar

4 To some extent, this is unfair to Geertz. He does note that his comparative perspective in “Local Knowledge” has the effect of flattening the internal variation of each of the legal systems he discusses, making it appear unitary and unproblematic. Still, given the tone of his other writings, 1 doubt that he would be inclined to think first of legal institutions as places where power is exercised through judgments about facts. 1 take his point to be rather that legal concepts and factual determinations are always inescapably linked, a point 1 agreed with at length in Kim Lane Scheppele, “Facing Facts in Legal Interpretation,” 30 Representations 42 (1990).CrossRefGoogle Scholar

5 I see myself as engaged in something akin to E. P. Thompson's project in Whigs and Hunters: The Origin of the Black Act (New York: Pantheon, 1975). In that book, Thompson found that laws enacted to reinforce the privileges of class also presented opportunities for the working class to make arguments that would blunt the raw exercise of arbitrary power. This analysis gave rise to his often-quoted homage to the rule of law. Like Thompson, I think the law has distinct advantages over ordinary political processes, though it is far from the neutral instrument in service of equality that it often pretends to be.Google Scholar

6 Id. Google Scholar

7 Senator Biden said in his opening statement: “I want to emphasize that this is not a trial, this is not a courtroom. And at the end of our proceedings there will be no formal verdict of guilt or innocence nor any finding of civil liability. Because this is not a trial, the proceedings will not be conducted the way in which a sexual harassment trial would be handled in a court of law. For example, on the advice of the nonpartisan Senate legal counsel, the rules of evidence that apply in courtrooms will not apply here today.”Nominations of Clarence Thomas to Associate Justice of the United States Supreme Court of the United States: Hearings of the Senate Judiciary Committee, 102d Cong., 2d Sess., Fed. News Service, 11 Oct. 1991, available in LEXIS, Nexis Library, Fednew File (“Hearings”).Google Scholar

8 See The Black Scholar, Court of Appeal: The Black Community Speaks Out on the Racial and Sexual Politics of Thomas v. Hill (New York: Ballentine Books, 1992) (“Court of Appeal”);Toni Morrison, ed., Race-ing Justice, En-Gendering Power: Essays on Anita Hill, Clarence Thomas and the Construction of Social Reality (New York: Pantheon, 1992,) (“Morrison, Race-ing Justice”) and the special issue of Southern California Law Review (March 1992) for collections of articles on the Hill/Thomas hearings.Google Scholar

9 The Republican senators were just the front for a large operation that included parts of the White House staff and the Justice Department, as well as the usual congressional staff. Although Thomas denied having any “handlers” in helping him prepare his testimony, the Republican senators had hordes of them.Google Scholar

10 See the statements of the Congressional Black Caucus Foundation (opposed to Thomas's confirmation), the NAACP (opposed Thomas, but late), the Southern Christian Leadership Conference (supported Thomas), and the Urban League (supported Thomas) collected in Court of Appeal Google Scholar

11 See Nathan Hare & Julie Hare, “The Clarence Thomas Hearings,”Court of Appeal 78, and Jacquelynne Johnson Jackson, “‘Them against Us’: Anita Hill v. Clarence Thomas,”id. at 99.Google Scholar

12 See Beverly Guy-Sheftal, “Breaking the Silence: A Black Feminist Response to the Thomas/Hill Hearings (for Audre Lorde),”in Court of Appeal 73, and Gayle Pemberton, “A Sentimental Journey: James Baldwin and the Thomas-Hill Hearings,” in Morrison, Race-ing Justice 172, 189.Google Scholar

13 See Kimberlé Crenshaw, “Whose Story Is It Anyway? Feminist and Antiracist Appropriations of Anita Hill,”in Morrison, Race-ing Justice 402.Google Scholar

14 Morrison, “Introduction: Friday on the Potomac,”in id. at vii.Google Scholar

15 Shari Seidman Diamond presented a paper at a Plenary session at the Law and Society meetings in May 1992 analyzing the polling data collected at the time of the hearings. She found that popular support for Thomas did not rest on belief in his story as much as it rested on the belief that he was being treated unfairly on account of his race or the belief that he deserved the benefit of the doubt when the evidence was unclear.Google Scholar

16 Hearings, 11 Oct. 1991.Google Scholar

17 Of course, this means that sometimes those in positions of power may be caught up in their own records. Executives accused of white-collar crime may inadvertently have in their possession the physical documentation the prosecution needs to successfully prosecute its case. And of course former President Nixon learned the consequences of keeping detailed tape recordings of criminal activities; many of his aides went to jail on the evidence he kept. But the crucial point here is not that powerful people have records that can always exonerate them. Instead, the point is that relatively disadvantaged people may not have the records necessary to prove their claims against the powerful.Google Scholar

18 Martha Mahoney, “Exit: Power and the Idea of Leaving in Love, Work and the Confirmation Hearings,” 65 S. Cal. L. Rev. 1283 (1992).Google Scholar

19 Hearings, 11 Oct. 1991 (cited in note 7).Google Scholar

20 Hearings, 13 Oct. I99I.Google Scholar

21 As I have argued elsewhere, often multiple witnesses testifying to the same thing can produce the effect of being more credible than one story standing alone. Kim Lane Scheppele, “Just the Facts, Ma'am: Sexualized Violence, Evidentiary Habits and the Revision of Truth,” 37 N.Y.L. Schl. L. Rev. 123 (1992). That didn't work here, however. For one thing, not all the stories were about the same concrete instance. And for another, each witness could be portrayed as politically motivated, an important element of the attempt to discredit Hill herself.Google Scholar

22 Hearings, 11 Oct. 1991.Google Scholar

23 Andrew Ross, “The Private Parts of Justice,” in Morrison, Rac-ing Justice 40, 56 (cited in note 8).Google Scholar

24 Hearings, 11 Oct. 1991.Google Scholar

25 Id. Google Scholar

26 Id. Google Scholar

27 I owe this observation to Gloria T. Hall, “Girls Will Be Girls, and Boys Will … Flex Their Muscles,” in Court of Appeal 96 (cited in note 8).Google Scholar

28 I argue this at length in Scheppele, 37 N.Y.L. Schl. L. Rev. Google Scholar

29 Hearings, 12 Oct. 1991 (cited in note 7).Google Scholar

30 Id. Google Scholar

31 Id. Google Scholar

32 Many of the images used by Thomas's defenders that day were astonishing inversions. The idea that Thomas would be lynched for sexually harassing a black woman flies in the face of all the evidence we have about lynching, which was that it was used for violations of the strictly enforced color line rather than for conduct within the black community. Black men who had become sexually familiar with white women were particularly endangered. So the idea that Hill would be responsible for lynching Thomas, while Senators Strom Thurmond and Orrin Hatch rode to his defense, makes for some odd uses of history. Thurmond, in particular, has not been known in the Senate for his strong defense of the cause of equal rights for African Americans. And Thomas's white wife joined with the conservative and the powerful to support Thomas against this lynching at the hands of a black woman.Google Scholar

33 Harvard sociologist Orlando Patterson argued that Thomas might well have said what Hill said he said but that Thomas would have been justified in lying about it. Why? Because Hill and Thomas shared a common black culture, in which comments like that would normally have been taken as the playful banter Thomas intended. Hill, in coming forward to charge Thomas with sexual harassment, was being unfair. This article appeared first as an oped piece in the New York Times, at the time of the hearings, generating an outcry from black feminists. Patterson's article has been reprinted as “Race, Gender and Liberal Fallacies,”in Court of Appeal 160 (cited in note 7). This may be the first cultural defense of sexual harassment.Google Scholar

34 Finding such references is very easy. All one has to do is to sign onto LEXIS or WESTLAW and search for the term “Long Dong Silver.” I did this during the hearings and found the same lone Kansas federal district court case. What Hatch failed to mention, however, was that the plaintiff in that case lost on the sexual harassment claim, though she won on a separate claim of racial harassment. Presumably, had Hill wanted to invent facts of sexual harassment from scratch, she would have selected a case in which the plaintiff was successful in charging sexual harassment.Google Scholar

35 Hearings, 12 Oct. 1991.Google Scholar

36 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).Google Scholar

37 Antonio Gramsci, Selections from the Prison Notebooks, ed. & trans. Quintin Hoare & Geoffrey Nowell Smith, 199 (New York: International, 1971). Gramsci's essay on “The Study of Philosophy” further elaborates his conception of common sense. Id. at 323.Google Scholar

38 Pierre Bourdieu, Outline of a Theory of Practice (Cambridge: Cambridge University Press, 1977).CrossRefGoogle Scholar

39 Just putting more people of the relevant social categories on the bench or in the jury box will not fix this problem. Studies of male and female jurors show that, despite the substantial disagreement men and women reveal in describing what counts as rape, men and women rarely disagree on juries in rape trials. See Hubert Feild & Leigh Bienen, Jurors and Rape 50–51 (Lexington, Mass.: Lexington Books, 1980). Apparently, women feel they have to be “objective” when judging rape cases, and this means that they discount all of their perceptions that are not shared by men. If such views about objectivity are part of common sense, then what needs to be changed is not just the personnel who do the judging but the hegemonic system of thinking about evidence.Google Scholar

40 Erving Goffman, Relations in Public (Glencoe, 111.: Free Press, 1964).Google Scholar

41 Some of the results of this study are reported in Kim Lane Scheppele & Pauline B. Bart, “Through Women's Eyes: Defining Danger in the Wake of Sexual Assault,” 39 J. Soc. Issues 63 (1983).CrossRefGoogle Scholar

42 In one survey, only 9% of the women quit their jobs immediately when harassment began, though more quit once escalation occurred. See Lin Farley, Sexual Shakedown: The Sexual Harassment of Women on the job (New York: McGraww-Hill Book Co., 1978). Another report found that fewer than 5% of sexually harassed men and women ever reported the harassment or took any action. See Sandra S. Tangri et al., “Sexual Harassment at Work: Three Explanatory Models,” 38 J. Soc. Issues 33, 47 (1982). Still another study, this time of government employees, found that 52% of female victims of sexual harassment did nothing about it and tried to ignore it. U.S. Merit System Protection Board, Sexual Harassment in the Federal Government: An Update 24 (Washington, D.C.: U.S. Merit System Protection Board, 1988).Google Scholar

43 Of course, sometimes this can work against people if they are inadvertently documenting their own illegalities in the process, as Richard Nixon found out with the Watergate tapes. But often records routinely kept document routines, and the presence of such routines is interpreted as undermining the idea that something else was happening at the same time.Google Scholar

44 Most women do not report sexualized violence. Estimates of the reporting rate for rape, e.g., range between 5–50% of all offenses being reported. Kim Lane Scheppele, “The Revision of Rape Law,” 54 U. Chi. L. Rev. 1095, 1096 (1987). Also see Kristin Bumiller, The Civil Rights Society (Baltimore: Johns Hopkins University Press, 1989), for evidence that those who experience workplace discrimination are unlikely to report. And battered women often do not report that they have been beaten. See Lenore Walker, The Battered Woman (New York: Harper & Row, 1979).Google Scholar

45 Hearings, 11 Oct. 1991 (cited in note 7). Note that Clarence Thomas was already making this argument before Anita Hill even testified before the committee.Google Scholar

46 Model Penal Code, sec. 213.6(4) (Official draft & Rev. Comments 1980).Google Scholar

47 This may be changing in California, but even there, delayed complaints have a difficult time being heard. See Jocelyn B. Lamm, “Easing Access to the Courts for Incest Victims: Toward an Equitable Application of the Delayed Discovery Rule,” 100 Yale L.J. 2189 (1991).CrossRefGoogle Scholar

48 Judith Herman, Trauma and Recovery (Cambridge, Mass.: Harvard University Press, 1993), details the variety of circumstances that can give rise to the condition and how it works.Google Scholar

49 Id. at 175.Google Scholar

50 The case is generally referred to as the “Rodney King case,” even though he was not the defendant and did not even testify at the first trial. The official case name is California v. Powell, No. BA035498 (L.A., Cal., County Ct., 30 April 1992) (unpublished opinion of Judge Weisberg). Powell was the police officer shown hitting King more than 40 times in the videotape made famous by repeating television showings.Google Scholar

51 The defense was not entirely unified. The defense attorney for defendant Ted Briseno mounted the rather odd story that his client, shown kicking King in the head on the videotape, was actually trying to save King from further beating. Briseno was portrayed as the savior, and he was acquitted. The other three defendants (Sergeant Stacey Koon who admitted to ordering his officers to beat King; Officer Timothy Wind who was a rookie and who kept his head down during the trial, not testifying and not even mounting much of a defense; and Officer Powell) maintained a common defense that King–-“buffed out” and “probably on PCP”–-was a constant threat to the officers. (Details can be recovered from “What the Jury Saw,” a two-hour videotape of trial highlights put together by Court TV.) All the defendants were acquitted in the first trial, save for a charge against Powell the jury could not resolve. The defendants were then brought up on federal charges of violating the civil rights of Rodney King, and Koon and Powell were convicted.Google Scholar

52 The public disbelief and outrage that followed the acquittals in the first LA police case gives further support to the earlier claim that physical evidence is generally believed more than any other form of evidence. The videotape represented physical evidence that the beating took place, and most people watching the tape believed that the police would surely be found guilty of assault. But the defense lawyers were able to turn the video to their advantage by going frame by frame through the tape, over and over again, poring over every move of Rodney King, and portraying each blow by the police as a response to an aggressive move by King. They reframed the physical evidence and used it to support their own case in another stunning inversion of who was the victim and who the aggressor.Google Scholar

53 Mikhail Bakhtin, “Discourse in the Novel”in The Dialogic Imagination, trans. Caryl Emerson & Michael Holquist (Austin: University of Texas Press, 1981).Google Scholar

54 Id. at 299–300.Google Scholar

55 Robert Cover, “Violence and the Word,” 95 Yale L.J. 1901 (1986).CrossRefGoogle Scholar