A Metamorphasis of Sorts

by Rebecca Eisenberg

an essay

May, 1993

Like many people at Harvard Law School, I came to law school as the inevitable culmination of a journey that began in grade school with student council, and continued with student government and local political activism ever since. In high school, I was elected both "Most Likely to be Elected President" and "Biggest Complainer" by my senior class. In other words, I was someone who liked to set the rules, and was vocal about them when I disagreed. Although fame and prestige certainly entered my mind, the true force behind me was a search to find justice.

My first encounters of feminism occurred when I learned about the sexual "double standard." Immediately I rejected any societal rule that deprived girls of fun simply because they were girls. A strong believer in women's liberation from an early age, I was perhaps known by some as promiscuous or gutsy, but was never, as far as I can imagine, ever, considered to be a "man-hater." Perhaps that was because my lifetime goals always seemed to conform to the social role that society dictated for men rather than for women. So, I pursued my academics and extracurriculars with a compulsive drive to be the best -- not just the best in my gender -- and reached age 18 as high school valedictorian and one of my school's first women to attend math-and-science-oriented Stanford University.

Stanford's fraternity system and controversial "speech code" regulations enlightened me as to the critical difference of race and class. I felt pressure, however, to hide my feminism. The "Women's Center," I was told, was a place for lesbians (who, my crowd instructed, were horrible people to be associated with), and, sadly, I often allowed my desire to be accepted to win a battle with my intuition. In direct contrast to my persona in high school, I allowed my companions to see the "fun-loving" side of me, and kept my academic side -- writing papers on feminist philosophy, researching quantitative theories of biological determination -- safely hidden. I came to Harvard largely because inside I needed to team forces with myself, and find what I was looking for.

Arriving at Harvard, I was less concerned with changing the rules as I was with learning the rules as they existed. The force that drived me was the challenge of breaking into the male-dominated legal profession as it existed. While I still dreamed of entering politics or academia, I saw "playing by the rules" as a necessary prerequisite to attaining status in a male world.

Still, I became increasingly disillusioned with the course I had been steering. It was hard not to notice that all of my professors were male, as well as were the students who were the most vocal during class discussions. The legal rules as designed seemed premised on assumptions about human behavior that did not apply to me or my experience. I searched fervently for a role model to provide some direction.

The first feminist legal critique I gained exposure to was also probably the first assignment for any of my courses that was actually written by a woman. It was an article written by Mary Joe Frug, a professor at New England School of Law. Professor Frug began her article by psycho-analyzing the possible reactions of the audience of her article, and proceeded to demonstrate hidden and not-so-hidden gender biases displayed in the casebook we were assigned to study for contracts class. She forcefully and critically demonstrated the ways in which the book reflected and enforced negative stereotypes about women. In my mind, as a psychology major, and as a feminist, her article resonated. It never would have occurred to me before this article that a combination of psychology and law would point so sharply to feminist legal theory. I had found my role model.

One morning, in the spring of my first year of law school, I woke up to a news report on the radio that Mary Joe Frug had been murdered. She was brutally stabbed a few blocks away from her home in an affluent part of Cambridge, only blocks away from the law school and the dormitory where I lived. She had been in the process of writing a feminist critique of the law, focusing on the problem of violence against women, when she joined the ranks of the statistics she had decried. Ironically, she was murdered in the process of walking home from a trip to the local grocery store.

Professor Frug's murder was destabilizing, disempowering, and profoundly terrifying. She had been killed by a person who knew her well, the police speculated; the motives were said to have included jealousy and betrayal. But no one knew for sure. The silence surrounding the circumstances of her death were horrifying; the prospect of breaking into the male world which I had earlier embraced now seemed frightening and ultimately unachievable.

When my one female professor -- Professor Kathleen Sullivan -- declined even to address the Frug murder in my criminal law class, I found much solace in discussing the murder with other women who had been similarly traumatized. In the light of a future which was revealed to offer little hope, we painstakingly debated our two primary options: stay "in the system," or get out. Things could not get any worse within the system, I told myself. And, with Mary Joe Frug's voice permanently squelched, the system needs me. I opted for "in."

So I dove in, in a big way. I picked up the writing competition for the Law Review, and set my mind on being selected. As a fan of writing, and of Supreme Court politics in particular, I actually enjoyed the writing competition, and received my acceptance notice with both relief and determination. When the law review survey arrived in the mail, requesting information on my legal interests, I filled in "women's issues, violence against women, non-traditional families, and the rights of the disempowered." The dream of starting out from where Mary Joe Frug had left off seemed formidable yet exciting at the same time. I certainly expected no red carpets to appear.

And of red carpets, I was correct. I found myself entrenched in an organization filled with men who, I believe, took very little I had to say in any serious manner. I learned quickly that the editorial suggestions I toiled over were ignored by my primary editors, only to be later incorporated by the more credible editors. I often discovered this by being assigned the "type-ins" of changes made late in the editorial process. Protests of "didn't I suggest this three drafts back?" were usually met with blank stares and condescension. Not that humility was a trait common to many law review editors; during the job interviewing season, editors who had "good grades" openly discussed with (only) the other editors that they perceived as having "good grades" the painful process of having to choose between the three or four most selective and elitist law firms in the country. Editors "casually" left their resumes and transcripts lying around the common work areas, as if to intimidate us common folk out of even trying to compete.

I did not want to give up on Law Review, however. I searched for an opportunity to contribute to the journal in a way that I would find meaningful, and perceived such an opportunity in the chance to work on the unfinished draft of the Mary Joe Frug manuscript -- the article on which she was working at the time of her murder -- which the Commentaries Office had agreed to publish posthumously. Although I was not selected as one of the primary editors of the piece, I was assigned the task of editing Ruth Colker's response to the Frug article, which critiqued the article from a lesbian point of view. Working on the Ruth Colker response was thrilling; I found myself spending hours in the feminist library, painstakingly checking sources, analyzing arguments, and tightening prose -- surrounded by the comfortable environment of cookbooks, feminist novels, and works of feminist art. Not only did that experience teach me a lot about lesbianism, feminism, and the social construction of gender, but it also taught me a lot about myself.

In order to evaluate the Colker response to the Frug piece, I had to familiarize myself with the Mary Joe Frug article itself. Studying the Frug piece was exciting yet haunting. Since I had loved Professor Frug's critique of the contracts casebook, I had high expectations of her most recent work. Nothing could prepare me for the admiration I felt for this scholar when I read her posthumous work; her writing was compelling and creative, forceful yet funny. How could I not love a legal scholar who juxtaposes a powerful quote of the radical feminist Catharine MacKinnon with a quote of Madonna? "[I]t seems indisputable that Madonna's version of the female sexualized bodily is radically more autonomous and self-serving than MacKinnon's interpretation," Frug wrote, "and significantly less troubled and doubled than mine."

As soon as I finished working on the Colker and Frug articles, I flew off to California to begin my first rounds of interviewing for a judicial clerkship -- a step I was told was necessary in order to attain my still elusive dream of a job in legal academia. While I was away, trouble began brewing in Gannett House (Law Review's headquarters) over the Mary Joe Frug commentary. Apparently, the right-wing faction of the Law Review editors caught wind of the fact that Professor Frug employed explicatives in her manuscript. The "traditionalists" on the Law Review were offended by Professor Frug's forceful, pornographic, and "male" (in her words) prose. Had they actually read the piece, they would have noticed (maybe) that she was using these words to protest the harms that pornography and rape inflict upon women. The conservative boys (and a couple of their female friends) could not have realized that "cunt" and "fuck" truly are terms of art in the feminist legal community. But that is probably because they never bothered to read (or perhaps read but never grasped) any feminist theory. A sad thought in light of the fact that we feminists are forced to read their point of view all of the time.

Even though they proclaimed outrage over Mary Joe Frug's use of language, I could not help but question their true motivations. After all, most of the people protesting the "dirty language" were active members of the Federalist Society, the organization at Harvard Law School which purports to champion individual liberties and to oppose censorship. I guess that they only oppose censorship when they like what is being said, because these editors fought tooth and nail to change the Frug piece, or to eliminate it from publication altogether. When they lost their vote when the matter was eventually taken to the body for a group decision, they were not happy. But the Frug piece survived. Was it inevitable that the publishing a feminist piece in this presumably "non-political" magazine would be close to impossible? (It certainly was not difficult to publish a conservative "law and economics" piece, since at least four were included in that volume.) I quickly learned that the answer to that question was "yes."

Law Review Presidential elections shortly followed the "Frug controversy." Governed by strict rules set out in the Law Review's constitution, the elections begin at eight in the morning, and, through painful rounds of discussion and voting (generally cutting only a few candidates each time), have been known to last past midnight, when the single victor finally emerges from the kitchen, where the candidates have been confined, cooking for the rest of the editorial staff, all day. I was struck by the cruelty and conceit of the editors who chose to make comments about the candidates. "Only two of these eleven candidates are intellectual enough to serve as president," stated a third-year editor who apparently believed that he was superior even to all of the candidates, in order to make such a qualified judgment. The editor, who ironically was an unsuccessful presidential candidate from the previous year, next proceeded to expound upon the merits of choosing a candidate who would be able to "engage an argument" and "think like a philosopher king."

It was hard not to notice that the philosopher-king standard necessarily excluded women from its ranks. In a surprising twist of fate that year, however, a women did manage to win the election. She was a quiet woman with a full head of gray hair (not too much unlike the much loved Barbara Bush) who seemed to be at Gannett House twenty-four hours a day -- always working, rarely speaking. Noticeably, she had chosen to abstain on the Mary Joe Frug vote. I had never viewed her as a feminist by any means of the word, but voted for her in the final round, simply because she was the only female to make the final cuts. I soon regretted my choice; that year, the president was given discretion in choosing amongst candidates for the prestigious "masthead" editorial slots. Emily chose few women for those posts, and we were left with yet another virtually all-male, all-white Law Review governance.

After elections, I left town again to travel to California for still more clerkship interviews. With my solid academic credentials, I could not understand why my clerkship search was bringing no positive outcome -- I had already interviewed with fourteen judges. When I returned from my third trip, a friend of mine let me in on a "secret" -- certain conservative third year editors were calling the clerks of the judges who interviewed me, "exposing me as a feminist." So, I announced one day in the editor's lounge that I had given up my clerkship search, secretly sent out a final rounds of applications, flew out west for the fourth time, and came back with an offer. So much for a Law Review "network."

Despite my profoundly negative experiences with the journal, I remained committed to carrying out my initial goals of contributing to feminist scholarship. I received a slot for a book review, and began lobbying everyone in a decision-making capacity to allow me to review a non-conventional feminist book, Susan Faludi's Backlash. After a month of phone calls, notes, and tiresome explanations of why the book was important from a legal standpoint, I eventually was allowed to write it. The only hitch was that my supervising editor was a staunch conservative and vice-president of the Federalist Society (in addition to being a person I simply did not like). Counting my blessings, I began the task.

Needless to say, my primary editor and I disagreed on the nature of my book review. I wanted to write about "theory;" he wanted me to write about "law." I wanted to write about "policy;" he wanted me to write about "cases." The painful process had the effect of requiring me to remain at Gannett House during all hours of the day and night, including over spring break. Eventually, a compromise emerged, but the final product was published in June, rather than in May, when it was originally slated for the presses. While I thoroughly hated the process of continually fighting with my supervising editor, the fact that I was confined to Gannett House for so many hours allowed me to witness some events that I wish I had not seen. One of them was the writing of the "Revue."

Every year, Law Review had a tradition of creating a mock issue, where third year editors had a chance to make fun of all of the people in the Law Review community -- editors, staff, and outside writers. While the "Revue" originally emerged as a well-meaning opportunity to poke fun at people who tended to take themselves, and everything, far too seriously, it evolved that year into a forum for angry men to vent their antagonism and hate.

I had heard about the tradition of the parody, did not like it from the start, and made my feelings known to that year's self-selected group of "Revue"-writers (who were obvious to me since they were the only editors who were at Gannett House for as many hours as I was). One of the authors pulled me aside one day, and tried to appease my worries by telling me that "everyone gets ripped on, not only you." This editor was familiar to me; I had answered many phone calls for him, since he apparently believed that answering phones was a woman's job. He also was the editor who had been rumored to have called up the chambers of the judges with whom I was interviewing.

I was eventually given the opportunity to view the finished parody issue at the annual Law Review Banquet, where the Revue was served to us with our place settings as the program for the evening. I flipped through the footnotes and was appalled. To be fair, however, I was appalled by many things that evening. I was wearing a red armband in protest of the M.C., Professor Charles Fried, who was notorious for arguing that to hire women or people of color for the Law School faculty would require compromising the school's standards of quality, and that there was not one woman of color in the entire world who was qualified to teach at Harvard Law. Having already engaged in a friendly discussion with Professor Fried earlier that evening, and being uncomfortable about the snobby nature of the banquet tradition in general, I did not spend much time studying the entire parody issue that evening, other than to flip through the footnotes in search of personal references.

The day after the banquet, I could not concentrate; something was bothering me that needed to be voiced. I pulled out my copy of the Revue again and read it closely. That evening, I stayed up until four in the morning, thinking and analyzing. I eventually pounded into my computer what bothered me about the personal attacks I read in the parody's footnotes. Consistently, the parody treated men and women in entirely disparate manners. While men were teased for being "arrogant" or quiet, women were referred to as stupid, whiny, bitter, undedicated, and -- most egregiously -- poorly dressed. No women was called arrogant -- such would imply some baseline of self-respect. Men's sexuality was associated with power; women's sexuality was associated with incompetence. I noted these and other biases against women as displayed in the mock issue, urged that gender discrimination is not funny, and insisted that the attitudes revealed in the Review demonstrate the blatant sexism that pervades Law Review. I placed my finished memo on the bulletin boards of the editors' lounge the following morning. Although I was terrified about the consequences to my memo, no one approached me to discuss it. In a way, being ignored was even more painful than any objections. Much later, I learned that some people had even laughed at what I considered to be a plea for sincerity and respect.

Several other memos eventually followed mine, however. One woman told wrote that she had felt Law Review's environment to be especially harsh because she was a Black woman. Another memo added that the Revue authors should apologize for the cruel parody of Mary Joe Frug.

What parody of Mary Joe Frug? I had been so concerned with the footnotes of the Revue, which contain the personal references to law review editors, that I had failed to read the main text. In the past, the main text of the parody was generally nonsense, written purely as a means to facilitate the personal references in the footnotes. When I did read the text, I cannot say that I was entirely surprised. The "anonymous" authors used the same stereotypes they had employed in the footnotes to attack living female editors to slander and mock the slain Professor Frug. "I am proud of the irony that I, a postmodern feminist, am being published in the Revue because of my husband's tenure here," they wrote, in the article they titled "He-Manifesto of Post-Mortem Legal Feminism" by "Mary Doe, Rigor-Mortis Professor of Law, . . . wife of Gerald Frug, Professor of Law." The parody described a sex-starved Mary Doe who loved to "gaze upon . . . men in . . . tight Speedos" and "eat . . . hot dogs with a lot of relish." It continued with a description of a feminist "girls night on the town" where several well-known women (feminists and others) were portrayed enjoying to "go out at night to hunt down some hunky men and rip their clothes off. Sure, its degrading, but we've all carefully selected wimps for husbands." The parody contained an explicit message to its audience who might be offended: "If you don't like it, well, f**k you."

It did not surprise me that such verbal warfare was used by the men whom I had known had written the parody. They were not nice people. What did horrify me was the cavalier attitude they demonstrated regarding the recent murder of a woman who was well-known and loved by so many people in the community. The parody closely paralleled Professor Frug's posthumous work; it seemed clear that the authors had written the parody with a copy of the published article in front of them. That being the case, it terrified me that the authors ignored the fact that their parody was scheduled to be distributed on the one-year anniversary of Professor Frug's murder (which was plainly specified in the introduction to her piece), and that Professor Frug's husband was invited to the banquet itself.

The next day, three women approached me during feminism class, asking whether I had placed a copy of the Frug parody in their student mailboxes. Apparently, someone who had attended the banquet (student, staff, professor, or guest) had chosen to photocopy the first few pages of the Frug parody and anonymously place the copies in the mailboxes of the most prominent feminists on campus -- with the most egregious passages highlighted in pink. Although that act could reasonably have been interpreted as an attempt to expose the Revue to the community, these women experienced receiving the parody as a threat. Immediately, they scheduled a meeting to discuss a response, and invited me to attend. That evening, a group of about ten women and one man put together a six-page response to the parody, which they then distributed to the Law School community in order to expose the horror of institutionalized misogyny. "As far as I am concerned," one of these women told me, "this precisely is what killed Mary Joe." As long as I live, I will never forget those words.

Still, had the national critical legal studies convention not been scheduled at Harvard that weekend, I seriously question whether the Law Review would have taken responsibility for its actions. Once it seemed clear that the Revue upset more people than simply me or the other editors who had initially voiced concern, our new president, Emily, called for a body meeting for that Friday afternoon. To my horror, much of that meeting was spent explaining what was "wrong" about the Revue, rather than how the authors could ever rectify the harm they caused. Once we had finally achieved some sort of agreement on the idea that something had to be done, a group of about fifty critical legal scholars, many of whom were close friends of Professor Frug, invaded our meeting to voice their outrage. Emily mollified their anger by promising that we would respond, and that we were taking the issue seriously, and the crits went away to attend the conference. I felt like I was sitting with the wrong group of people. I had, after all, registered for the conference myself.

Unfortunately, the members of the Law Review who had been directly responsible for writing the parody still refused to identify themselves, claiming that the tradition of the Revue had always demanded secrecy. In the face of a week of people voicing their pain and outrage, these students adamantly refused to take responsibility for their actions. It was only after another second-year editor and I threatened them with expulsion from the Law Review (since they knew that I knew who they were), and at least ten hours of "meetings" making that threat clear, that a few of them eventually confessed. It is a sad commentary that the only force that could motivate them was not a genuine concern for the suffering of others, but rather a selfish concern to protect their resumes.

None of these details reached the press, however. Eventually, most of the editors responsible for the Revue admitted their guilt, and reluctantly apologized to the law school community. Newspapers and magazines seized onto the story, and soon everyone had something to say about it.

The faculty agreed that the parody was "contemptible and cruel." Students pasted fliers on the school hallways decrying the men who had written it. Professor Tribe likened the parody to "dancing on Professor Frug's grave." The civil rights community voiced their anger. A few of the faculty made a call to diversify the faculty. Professor David Kennedy called upon the administrative board to investigate charges of sexual harassment. Letters poured into Gannett House from all over the country. The phones would not stop ringing, even at my home. Soon the counterattack followed: Alan Dershowitz and the Federalist Society urged that we remain true to our "first amendment principles." The Revue degenerated into a battle between the free speech absolutists and their so-feared "PC police."

What struck me through all of this was the manner in which the pain, insult, and terror we felt became quickly ignored. To me, this was a story of a brave woman who had dedicated her life to creating a better world, only to be destroyed by the very forces she had struggled against. To me this was the story of the fear that all women face as we try to walk down the street at night, and know that the one characteristic that makes us most vulnerable to attack -- that we are female -- is one that we cannot escape, and most of the time do not want to let go of. To me this is a story of how women can state their pain again and again, and not be believed -- or, even less, be told that they must be more true to some theoretical first amendment "principle." To me this is a story of how one person's "freedom" to act as they please will inevitably rely on the oppression and subordination of many others. It is a story of sexism; a story of injustice. If I learned no other lesson through this experience, it was that if a harm is felt only by women, but not by men, such a harm becomes socially invisible.

I know I was changed by Mary Joe Frug, and even by the people who chose to "dance on her grave." I no longer look at any element of sexism as trivial -- whether it is sexism on television, in the newspaper, in books taught to children, or in the legal profession; all sexism leads to the murder of women. I no longer look at the fact that the laws that govern us were written only by men as rational; I no longer consider a constitution that did not consider women to be citizens as acceptable. It is no longer "cute" to dress girls in lace, and give boys toy guns. Everything, everywhere, stinks with inequality. I live my life, still happy on the outside, but serious, sad, and resolute on the inside. I want Mary Joe back.

The other week, I saw a segment on "Sixty minutes" describing life and death for women in India. Apparently, 22 million Indian women have been reported "missing" or murdered. "How could this have happened?" Mike Wallace asked. "Could it be that women are given absolutely no value, so that no loss is felt when they are killed?"

"Sometimes I think that our country will only learn their mistake when they have killed all of the women, and there are none of them left," was the spine-chilling reply.

Many people reprimand me for bemoaning the fact that all of the portraits on the Law Review walls are of white men -- a "trivial complaint that detracts from my credibility," they say. What these people need to understand is that it frightens me that I have no models on which to gaze -- most of my heroes have been raped or murdered as women. If they have managed to survive, it is usually the case that they have lost their names at a minimum. Usually their deaths are not remarked upon separately from their connection to a man.

The legacy which I will carry with me as I now prepare to leave Harvard Law School, is that I now have a crystallized purpose. By my lifetime, I hope to help more women be believed while living, and respected once dead. Adding our faces to the walls of men's buildings is a worthwhile first step towards reclaiming those buildings . . . or someday building structures of our own.

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Copyright 1996 Rebecca Eisenberg mars@bossanova.com