The Faculty Forum

Vol. 9, No. 8 APRIL 1998

"We could have lived together as as easily as dogs."


Gifford on the Professors Bernheim

Gaines on Kinko's & Copyright Law

Editorial: The Burden of Gender

Letters from John Staddon & Robert Gleckner

Possum (Passim)

Vesilind on Bass Ale

Ferret's Deconstructions (Michel Foucault)

Editorial Policy

NOTE: Full Academic Council Minutes from 1991 to the present are located at


--by James F. Gifford, Jr., Ph.D.

Archivist, Duke University Medical Center

Since the inception of Duke University, there has been constant discussion of how professors at Duke should balance their commitments to research, teaching and service in pursuit of the "success on many fronts" expected of faculty (The Faculty Forum, March 13, 1998, p.2 ). Today the discussion focuses on the need to maintain a world-wide reputation for excellence and productivity: originally it centered on how to draw to a small school in an isolated location the scholars essential for competing with more established institutions. In either situation the discussion becomes more complicated when the ever-present non-institutional variable, leading a satisfying personal life, is added to the mix.

The lives of biochemists Frederick and Molly Bernheim, members of the original faculty of the Duke University School of Medicine, offer one example of success in this endeavor. Each was a pure scientist in the sense that their research was directed to increasing fundamental knowledge, and both won world-wide recognition when their discoveries were applied in the field of pharmacology, Molly's for the treatment of depression and Frederick's in the fight against tuberculosis. Each became a successful teacher, he through the clarity and humor of his classroom presentations and she through precise technical demonstrations and the ability to rescue even the most bewildered student from confusion. Neither, however, was solely career oriented. They combined reserved personal attitudes and the habit of punctuality into a lifestyle with room for development of a wide range of activities that broadened their shared search for fuller understanding of the chemistry of life and strengthened the bonds of intellectual and social community that made Duke grow.

Frederick, a native of Long Branch, New Jersey and Molly, daughter of an officer in the British medical service, met at the University of Cambridge, England, in 1926, where they were engaged in doctoral studies in biochemistry. His ready wit often pointed at himself. She was shy to the point that she would ask little for herself, but nevertheless strong willed. So conservative was her background that her mother did not support the idea of higher education for women and only financial assistance from an aunt on her father's side, Dorothy Hare, who was herself a professor, made her doctoral studies possible. She and Frederick shared a common commitment to the study of biochemistry, a love of working at the bench, a wide range of intellectual and cultural interests and humanitarian values. In 1928 they married.

Molly already was at work on the line of research that later would win world-wide acclaim. She was studying the processes of oxidation in liver tissue. At that time scientists generally accepted the concept of Otto Warburg that all oxidation processes in cells depended upon the presence of iron. Sharing with another woman lab space so cramped that if one bent to open a drawer the other had to leave, Molly discovered a new enzyme system in the liver, which she thought was involved in detoxification of substances ( amines ) that entered the body after bacterial putrefaction during digestion, that did not depend upon iron. Later other investigators were to find that inhibiting this enzyme led to euphoria, which in turn led to development of drugs to combat depression. In 1975 publication of the proceedings of an international symposium in her honor confirmed the importance of her work.

Following appointments as post-doctoral fellows at The Johns Hopkins University School of Medicine, the Bernheims were recruited in 1930 to join the originating faculty at Duke University School of Medicine. Immediately Frederick was assigned to head the program in pharmacology. Although the connection between biochemistry and pharmacology is close, it was largely unrecognized at the time. From his angle of vision as a biochemist, Frederick quickly realized that biochemical pharmacology was a largely undeveloped field, and in particular that for most drugs, the correlation between the work of body enzymes in governing the body's chemical processes and the pharmacological actions of the drugs themselves was incomplete. For the next decade he conducted hundreds of experiments to deduce from studies of structure and function at the molecular level how the body works during metabolic processes. The questions behind these experiments became the basis for both his medical undergraduate and graduate school teaching. What is the structure of the substance under consideration? How does that structure affect activity? What happens to that activity if you modify the molecule? He combined the answers to these questions and the insight that "repetition is the soul of teaching" with humorous anecdotes into a brilliant teaching style that begged mimicry. His presentations inspired his listeners to expand their disciplined thinking beyond intellectual mastery of the scientific information at hand to intellectual integration of all of life's activities.

As World War Two approached, Frederick anticipated that tuberculosis might become rampant. Although his previous work had not involved bacteria, he turned his attention to this disease by studying the biochemistry of the organism. What, he wondered, did it require for food. He added various potential foods to cultures of the test organism and quickly discovered that the organism did not utilize his first choices, carbohydrates and protein components. Remembering that aspirin produced significant effects in many of his earlier run of experiments, he introduced it into these test cultures and found increases both in the uptake of oxygen and the production of carbon dioxide. This must be important, he knew, for the life processes of the bacteria. Inhibiting these processes might destroy it. His next experiments described a chemical that inhibited oxygen uptake by the germ and markedly slowed their reproduction. These results, communicated in characteristically short papers, became the basis from which Jorgen Lehmann and his Swedish colleagues elaborated the anti-tuberculous properties of PAS (para-aminosalicylic acid ). For this work, Bernheim was among the short list of candidates for the Nobel Prize in 1952. Just as characteristically, Bernheim told almost no one of the honor.

This personal reticence, which characterized both Bernheims, and the broad scope of their interests and activities drew a broad circle of friends from throughout the University. His interests included classical languages and literature, European and American history, classical music, play reading, politics, tennis and flying his own planes. Initially hesitant, she eventually took up his interest in flying and became a flight instructor. Her book, A Sky of my Own, is a joyful, almost poetic account of her experience flying. Her other interests included poetry, particularly the work of T.S. Eliot, nature and hiking, and gardening. She described herself as "conservative, but persistent", noting that while for most of her friends hiking meant a leisurely walk for twenty to forty minutes, she demanded of herself and others a brisk pace for at least eight to ten miles. Often they shared interests in complementary ways. She cultivated the greenhouse, he did the yard work, and together they enjoyed the acreage along the Eno River where they always intended to build a house and which today, through their donation, is a core parcel of the Eno River Park. Although reluctant to discuss themselves with anyone, they gave their time generously to any friend, colleague or student who shared an interest or needed help.

At a time when Durham lacked the wide variety of artistic opportunities now available, they supported chamber music and theater organizations both financially and by participation. They hosted conversations and parties that drew members of many academic departments into discussion of topics that crossed disciplinary lives. Representative was an occasion when Molly presented information on the history of the Hudson Bay Company, showing that its wealth, derived in significant part from the slaughter of beavers, came not just from the value of the pelts but also from the sale of a glandular substance that contained aspirin and reduced pain. Their many social relationships in turn facilitated Frederick's efforts to contribute to the shaping of the University community, including service on the faculty academic council and university senate, leadership of cultural discussion groups, serving as president of Sigma Xi, pushing for expansion of the University through increased research funding during the critical time for determination of the future direction of University development known as the Edens-Gross controversy, and helping to lead the faculty effort to deny an honorary degree to then Vice-President Richard Nixon.

Successful balancing of the institutional and non-institutional factors involved in the role of faculty members will require something different of every family. The Bernheims found their balance through an effort to integrate their many activities in a conscious search for better understanding of the chemistry of life. By participating together in a broad range of professional and community activities they nourished that chemistry and in so doing helped make Duke the kind of community that draws those it needs to grow. Expanding the definition of their discipline into a strategy for living, Frederick and Molly Bernheim sowed seeds of excellence that helped generate the success of the Duke University Medical Center.

The Campus Copy Center in the Age of Mechanical Reproduction:

Anglo-American copyright law is structurally indiscriminate. It can be made to serve either corporate property interests or the interests of research and learning. Its goals, however, are never stated in these "either /or" terms; rather, it understands the former as in the service of the latter. Thus, at this time in history, U.S. intellectual property law can be read as upholding the position that learning will ultimately be best served by copyright's private ownership. There is a contradiction, however, between the learning function and the increasingly corporate status of copyright, paralleled by a deeper contradiction which I find in the historical tolerance of the economic monopoly that is the functional antithesis of free enterprise. I refer here to the way that the U.S. Constitution grants the copyright as a monopoly, limited in its term, but a monopoly just the same. The Constitution gives authors and inventors short term monopoly grants on the theory that the issue of such grants would in turn benefit society. Article I, Section 8, clause 8, states that these rights to monopoly are given "[t]o promote the Progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In 1787, however, the Founding Fathers did not foresee a problem with the exclusive grant, and I want to emphasize that the negative side effect --monopoly -- was weighed against the benefit to society. Based on the spirit of this "ultimate good to society" clause, courts went on to hold that reading, learning, and aesthetic enrichment were the ends of copyright.

This kind of doubleness explains some of the fascination that copyright law holds for cultural studies scholars. Copyright doctrine, it seems, is a body of texts rich in contradiction. As French legal theorist Bernard Edelman puts it, "The law comes into constant conflict with its basic premise, private property." As I have argued elsewhere, the law can be understood as a "site of struggle," although it is both like and unlike those other sites that cultural studies has understood as "contested": clothing styles, television, popular fiction, and the body itself. As James Boyle has identified the basic contradiction within U.S. copyright law, it is a clash between private ownership and public good, a struggle that from time to time surfaces visibly in the courts but which, more importantly, has historically organized the subterranean layers of copyright discourse. Here I want to take Boyle further -- to show how all of the other oppositions introduced into copyright case law are variations on the private good versus public good opposition. Of course this binary profile means profit/non-profit, commerce/education, but it also means productive/unproductive, fair/unfair, single/mass, and original/copy.

Kinko's Graphics Corporation v. Basic Books, Inc., was heard by the U.S. District Court in New York on March 28, 1991. Eight publishers brought suit against the franchise, Kinko's Graphics Corporation, for infringement of their copyrights, charging that the campus duplication business had "copied excerpts from books without permission" and "compiled them into university course packets" that were sold to college and university students. Although the case is referred to as Kinko's v. Basic Books, this abbreviation in the case title (although common practice) is especially deceptive here since the plaintiffs were actually a line up of some of the most powerful and prestigious New York publishers: Harper & Row, John Wiley & Sons, McGraw-Hill, Richard D. Irwin, and William Morrow & Co. We might better call the case Kinko's v. The Big Publishing Eight. Although Kinko's, as we know, performs a variety of copying services, it was the "Professor Publishing" services, in operation since the mid 1980's, that concerned the publishers. In the "Findings of Fact" section of the written opinion, we read that the 12 instances of alleged copyright infringement were based upon the evidence of 12 excerpts found in 5 different course packs varying from 14 to 110 pages. The publishers argued that Kinko's neither sought nor obtained the permission to reproduce excerpts from these works that the plaintiffs had published. Two New York stores from which Kinko's sold the disputed excerpts are cited in the case: one serving students at New York University and the New School for Social Research, the other selling to Columbia University students. Basing their case on the strength of their ownership of copyright in the "works of authorship" they published, the Basic Eight argued that Kinko's "intended purpose was to supplant the publishers' "commercially valuable rights." The court, with Judge J. Motley presiding, agreed with the plaintiffs that Kinko's Graphics had tried to "supplant" the publishers' valuable rights. The publishers were awarded $510,000 in damages in addition to injunctive relief.

Essentially, this is a situation in which larger capital contends with smaller capital, flexing its economic muscle and shoring up holdings -- in this case immaterial intellectual property holdings. Legal commentators have been relatively uninterested in the case because it doesn't make any significant breakthroughs in legal doctrine. The New York Times and The Chronicle of Higher Education both gave it attention and the latter, criticizing the case, lamented the implications for university teaching. But university professors and administrators have had surprisingly little to do with this case. No professor testified on behalf of Kinko's, a situation remarked on by the court, and, with the exception of the results of one telephone survey Kinko's conducted with professors at the University of California Santa Barbara, no data in support of the significance of the coursepak was entered into the record. Although at least once in Kinko's defense the argument was put forth that "[a]n injunction against the educational photocopying at issue would pose a serious threat to teaching and the welfare of education," the copy company's protest "fell on deaf ears" with this court. Unimpressed, Judge Motley responded: "The extent of its insistence that theirs are educational concerns and not profitmaking ones boggles the mind." Kinko's was abandoned by the educational community because its profit motive undermined its defense.

The Kinko's strategy against the Basic Eight is a valuable lesson in how copyright can be understood as operating monopolistically. The court, however, was not impressed, and pronounced characterized Kinko's monopoly or "anticompetitive scheme" argument a "failure." The copy center launched their attack against the Basic Eight by contending that the publishers misused their copyrights by "broaden[ing] or extend[ing] the monopoly of [their] copyright in an effort to restrain competition." To some degree, this line of argument was doomed to failure since a violation of anti-trust laws has never proved to be a successful defense against copyright infringement in U.S. common law, although Kinko's v. Basic Books cites a line of case law to support this from Orth-O-Vision v. Home Box Office to Peter Pan Fabrics, Inc. V. Cany Frocks, Inc. But it is difficult for us as university professors to agree with the court against Kinko's when the copy company uses the fact that "plaintiffs have understaffed permissions departments" as an argument against the anti-competitive use of their monopoly rights. The record refers to the way the publishers "arbitrarily and capriciously refused to grant permission to Kinko's," at the same time granting permission to others; they delayed processing requests and even completely failed to process permissions. This behind-the-scenes look at the publishers' "slow down" strike against Kinko's should anger those of us who waited anxiously at the other end while our students had a field day in classes where the assigned readings never arrived. Answering this charge, the court stated that "backlogged permissions departments" didn't "constitute misuse of copyright."

What, you ask, about the much-publicized fair use defense? After all, the crucial points of law in Kinko's v. Basic Books all pertain to this doctrine, codified in Section 107 of the U.S. Copyright Act of 1976. American educators often proudly cite the passage which states that reproduction (in copies or phonorecords) is allowable "for purposes such as criticism, comment, new reporting, teaching (including multiple copies for classroom use), scholarship, or research." Determination of fairness, the Act goes on, will depend upon four factors: (1) purpose and character of the work; (2) nature of the work (3) amount and substantiality of the portion and (4) effect of the use on the potential market. By some European standards, the spirit of this statement seems generous, but I want to place some doubt in my readers' minds about fair use, which, as it turns out, does not mean what we thought it meant. Fair use is not about the generous allowance of educational and other non-profit uses of copyrighted material in the service of learning. Historically, it shows itself to be nothing more than a regulator of trade. Let's look back to the history of case law cited in Kinko's to the first U.S. case dealing with literary reproduction and quotation. "Fair use," as it is now called, evolved from an 1841 dispute revolving around the right of one author to reproduce substantial portions of another's published work. In Folsom v. Marsh, the author of the 866 page The Life of Washington in the Form of an Autobiography had reproduced, on 353 of its pages, letters published earlier in the twelve-volume 7,000 page The Writings of George Washington. In this case, Judge Storey laid down guidelines for intertextual excerpting. As it was developed after Folsom, common law fair use made it possible for one author or publisher to use copyrighted material from the work of another. Historically, fair use meant fair commercial use, and although some of this sense seems to be perceptible still in the British equivalent concept "fair dealing," in practice, at least in the U.S. law, fair use seems to have become synonymous (in the public mind) with educational non-commercial use.

The Kinko's case itself seems to be confused on this matter, since its assertion that "fair use and profit are not mutually exclusive" evidences what is actually an unnecessary concern with non-profit objectives since none of the copying in dispute was for non-profit purposes. Further, the law here seems to not know the very precedent it cites. Folsom v. Marsh is clearly about fair use and profit in commercial publishing. In order to see what has happened to the concept of fair use (to the detriment of education), we need to imagine a situation completely outside the market, to imagine a time when ordinary consumer use of books, journals, magazines was just that --ordinary. We need to think back in history to the period before the Copyright Act in 1909 when it didn't matter what consumers did with books once they bought them. It didn't matter whether they copied out pages to give to others or created new books comprised of favorite passages from published works. As copyright historian L. Ray Patterson explains it, before 1909, there were three kinds of use: "unfair use by a competitor (infringement), fair use by a competitor (no infringement) and ordinary use. . ." which raised no issues at all. After the 1909 Copyright Act revisions, however, these three uses were reduced to two: fair and unfair. This structure, the basis for the 1976 Act, leaves the courts with no means for separating consumers from competitors. The outcome of this, says Patterson, is first, that copyright is treated as a property, and second, that the copyright owner gains control over the "learning function." I'm sure that Patterson would agree that this is the problem with the economic practice of the Big Eight educational publishers: Their monopoly gives them control of the "learning function" of copyright, a function that we forget that it has had historically. Arguably, because of their control of the "learning function" these publishers have been able to reach into the classroom and determine what our students read or don't read.

My argument here is not at all that Kinko's use should be considered somehow "fair" because of its service to higher learning. Its use is certainly not ordinary and "outside the market." Given the parameters of the copyright code, its use is probably commercially "unfair." But the danger in the popular misconception of this case is that Kinko's commercial copying gets easily lumped together with ordinary, "outside the market" educational use. Only in a small footnote does the Kinko's opinion say that "Expressly, the decision of this court does not consider copying performed by students, libraries, nor on-campus copy shops, whether conducted for-profit or not." The point is that such educational uses have nothing at all to do with copyright violation. They are uses of the work (often confused with uses of the copyright in the work). It will be a sad day when such uses really are treated as copyright violation. But that day is hastened by our acquiescence in our own vilification. I see this acquiescence in our hesitancy to send articles for duplication to the campus (non-profit) copy center, in our reticence to duplicate articles on the new workhorse high speed copier machines in our academic offices -- machines that have the potential to reproduce the millions of readings it takes to educate a campus, a nation, a world. I would argue that this is a reticence (even a guilt feeling) actively encouraged over the century by the publishing industry. Copyright law has constructed ordinary users as competitors, and astounding as it seems, they are set up in competition with the publishing industry copyright owners themselves. We need to ask ourselves: What do the two "uses" have in common? Both types of "use"--commercial "fair" and non-commercial "ordinary"-- are potential market threats to the "publisher-authors" who control the most valuable copyrights in educational literature.

Some of what I am warning against can be seen as well in the recent British and American cases involving home taping -- both audio and video. In Sony v. Universal Studios, a 1985 case involving off-air videotaping, cited as precedent in Kinko's, the minority opinion made a strong argument in support of the District Court conclusion that consumers who "took" copyrighted network programs off the air were competitors who should not be allowed the "fair use subsidy." Although the U.S. Supreme Court decided that this copying of programs to be viewed later was an acceptable "use," the fact that the district court favored this position demonstrates the viability of the argument that consumers who choose to tape instead of buy are a competitive market threat to copyright owners. And so, by analogy, those who copy "whole books" in lieu of buying them, in words of the fair use code, affect "the potential market for or value of the copyrighted work."

One would think that the educational use concerns of the fair use code would raise considerations about the content of the material copied. To a degree, this happens in the third of the fair use factors, "amount" and "substantiality" of the work. And here, the question is one of whether or not the excerpt copied was a "critical part" of the work, a question betraying the market worry about copying instead of buying. In the Judge's words, this copying "doesn't whet the appetite for more, but rather obviates purchase of the full texts." (It is interesting to note here how our copying guilt is never over not buying but always over a vague notion of "deprivation of income that should go to some poor author" like ourselves.) The Kinko's case proceeds with its statistics on the percentage of each book copied, from the least problematic 5.2% to the worst case, 25.1% of the entire book duplicated, or 110 pages which went to as many as 132 students. Now the question is this, do the 132 students represent times reproduced (revenues lost) or do they represent the "mass" aspect that so easily vilifies "copying"? (Is it illegal because it deprives the copyright owners of their market [now, it seems, conceived of person by person and page by page] or because it seems wanton and excessive -- the way large runs of mass publication books do not seem wanton and excessive?) Or are these two concerns -- with loss of profit and mass production -- the same concern?

The Kinko's court, then, could be seen as holding against the copy center the fact that professors assigned such significant portions of these in-print as well as out-of-print books. The fact that these portions constituted the "heart of" the work in most cases, the court argued, was "evidence of value." Offered as evidence that these passages and chapters did constitute the core of the works was the fact that they were selected by professors, ostensible readers of content. Although copyright law seems to be concerned about content (from an educators' point of view), it is concerned for all the wrong reason. The fair use provision in copyright law, just as the copier machine itself, is totally indifferent to the ideas contained in the pages and pages of work duplicated. Evidence of this indifference may be the subject matter of the books used as examples of Kinko's infringement. They include Understanding Capitalism by Samuel Bowles and Richard Edwards, The Deindustrialization of America by Barry Bluestone and Bennett Harrison (as well as Carol Stack's All Our Kin: Strategies for Survival in a Black Community), part of the "Work and Community" Packet required for a course taught at the New School for Social Research by a Professor Hoffman. Further evidence of the indiscriminateness of copyright law is its failure to see the difference between these books and the excerpts from Business Ethics, The Money Market, The Money Bazaars and finally Lyndon Johnson and the American Dream, included in coursepaks for classes offered at Columbia University. Kinko's, as we know, will copy anything.

And in its unfettered broad interpretation of U.S. copyright doctrine Kinko's brought us (for a time) a glimpse of the industrial revolution's boon and promise to education, long delayed and postponed. The paradox of the age of electronic and mechanical copying is that the capabilities of reprographic technologies, of the machines of replication, have outdistanced the copyright law that has historically regulated their use. These runaway capabilities produce a market anarchy which offers the consumer copyrighted works as well as the means for violating the copyrights in these same works. Attempting to make sense of the anarchy of the market, the unwary consumer may ask himself. "Why would all of these copying machines be here if God had not intended us to use them?" Anticipating this kind of question, a representative of the American Association of Publishers recently cautioned that: "[J]ust because the technology's there doesn't mean it's O.K. to break the law."

So to invoke the reference in my title to Walter Benjamin's "Art in the Age of Mechanical Reproduction," I want to suggest that contemporary consumer culture has found ways of delaying the utopian moment of multiplicity and immediacy promised by industrial reproduction. The work Benjamin thought would be "emancipated" from the ritual of "aura" through mass reproduction, has, as we know, not stayed emancipated, not remained available to all. There are many ways of returning the "aura" threatened by mass reproduction to the object reproduced -- of secreting it away so that it remains scarce. One could cite the case of the contemporary popular music industry where, as Andrew Goodwin has told us, in the face of the evidence that music can clearly be produced as well as reproduced mechanically, recording artists live out of the romantic myth of authenticity. Another one of the means for re-enshrining the singular object is to denigrate the mass, the multiple, the millions. And this has been taken up by copyright doctrine, the very doctrine that would seem to be devoted to the opposite -- to the encouragement of learning thru duplicating.



"Doomed. . . from the instant the dividing egg determined its sex."

The familiar triad of class, race, and gender falsifies itself by its implication of equal balance. In fact, the weights of these terms are radically dissimilar. In their evolutionary pedigree, class is the clear lightweight of the three, having a history of perhaps ten thousand years or less, depending on when the agricultural revolution created a food supply capable of supporting a parasitic hierarchy of priests and royalty. Race has greater longevity, dating back possibly a million years, though probably just a fraction of that time within a currently meaningful definition of race. By contrast, the biology of sex which lies at the heart of gender has existed at least a billion years, and probably a lot longer.

As with their origins, the triad's functions display a profile of unequal value. At the dawn of history, class had the useful purpose of efficiently organizing the work of newly burgeoning populations just as anthills sort themselves into soldiers, workers, and queens. Likewise race -- or more exactly, race consciousness -- enhanced tribal survival in an age when Darwinian competition operated without a glimmer of humanistic idealism to temper its ethic of brute force. But at our present midpoint in evolutionary time, a sure sign of enlightenment is the widespread questioning of class- and race-based hierarchy. As that questioning continues, the once rigid categories of class and race figure to have, as Churchill said of a fellow M.P., a great future behind them.

This profile of diminishing importance cannot be applied to gender in its biological role as transmitter of life through infinite time. That permanent immutability is why the Faulknerian citation at the outset of this essay carries a special gravity. Needless to say, the gender of the character who was "Doomed. . . from the moment the dividing egg determined its sex" is female. Not that men always get off easy: to be born male in the wrong time and place could get you premature classification as a cadaver or amputee at Gettysburg, Verdun, or Iwo Jima. But the female does not need a war to suffer the doom Faulkner speaks of. All that is required is for the malice of nature to be compounded by the perverted social code which has enabled men to smash the weaker sex into subservience in most societies throughout history.

To this day, the word "smash" is literal. A few years ago in Brazil, the Supreme Court ruled that a man is legally entitled to beat his wife to death on mere suspicion of adultery, and of course less fatal beatings may go totally unquestioned. In Africa, the New York Times reports, routine wife-beating remains a widespread standard of manhood on a continent where one hundred million women are now living with their genitals mutilated. In Bosnia gang rape has recently proved to be a deliberate instrument of war. In India, thousands of women have been dowsed with gas and set on fire so their husbands could get a new wife with a better dowry. And if we may resolve the issue into a single image, it could be the photograph in a recent National Geographic (10/97, 67) of a Pakistani woman lying on a hospital table with her face burned off. Her husband, who had pushed her head onto a hot stove, will likely face no punishment of any kind, according to the article.

It is a bitter fact that we cannot reach out from our privileged bastion of enlightenment to prohibit atrocities of this sort around the world. But within our own borders we still have work to do relating to the most fundamental essence of female emancipation, reproductive choice. Here in the USA, my first encounter with the doom of the female occurred when an eleven-year-old classmate in the sixth grade got pregnant by a boy a year or so older. It must have happened soon after her first menstruation, in a time (1946) when, sex education being unheard of, she may not have known where babies came from. Robing religious dogma in the Full Majesty of the Law, the Theocratic Commonwealth of Massachusetts forcibly compelled this pre-teen girl to carry the pregnancy to term, nearly killing her during childbirth and ruining her life thereafter. She dropped out of school and I do not know what became of her, but I have often thought that anti-choice preachers and politicians could enhance their truthfulness by including in their television ads a minute or two of the screams of an eleven- or twelve-year old child in prolonged labor.

Because the Theocratic Commonwealth banned not only abortion but contraception, my high school years continued to highlight the doom of the female with growing frequency, a girl dropping out of this class or that one, sometimes in tandem with a boy who would marry her, sometimes alone. In the town next to ours, two hapless teenagers gassed themselves in the boy's family car. In the city paper, a steady drumbeat of weekly or monthly stories told of young women who suddenly took ill at their job and died, leaving an accessory before the fact (her lover) and one after the fact (the abortion-provider) to face legal charges. Returning to my home town, I have sometimes visited the grave site of one such woman whose younger sister was my schoolmate. For this young wife and mother, the punishment for adultery, with her husband gone to army service, became death at age twenty-eight. Her accessory before the fact may have experienced pangs of guilt and courtroom trouble, but there is a good chance that he still walks among the living.

In all these cases of sexual "misconduct," the inequity of nature imposed extra punishment on the female. If it is incumbent on a just society to make its law override the amoral law of nature, we need not question the good intentions of people who are anti-choice to say they are absolutely dead wrong to force an eleven-year-old child, or any other female, to carry through with an unintended pregnancy. And it is even more wrong for anyone born with the advantage of a male body to participate in such coercion. When his body can be expropriated by fetal tissue growing inside it, perhaps a male will have earned the moral authority to dictate a woman's response to this female crisis.

So we refer the question of fetal rights all the way back to the fetal state of the mother and the rights of that fetus to equality between the sexes. Until -- but only until -- the dividing egg determined her sex, she (the mother) enjoyed equal status with all other human creatures at that stage of development. When nature wafted her developing zygote into the female half of humanity, however, a harshly unequal burden of gender fell her way. Life being unfair, we cannot do much about the inequity of nature, but we do not have to compound that inequity with a grossly unequal social code. With regard to her ancient burden and mission toward life on earth, equality between the sexes compels this ethos: Let the woman decide. Period.

Letters to the Editor:

(I) Gender Imbalance in the Duke Faculty

Returning from a trip abroad I read with interest (really!) the collected minutes of the Executive Committee of the Graduate Faculty. Two back-to-back items caught my eye: the external reviews of the Department of Philosophy and the Women's Studies Program. The resolution on Philosophy ends: "Finally as a hiring strategy for the immediate future is implemented, the Executive Committee urges the Philosophy Department to address the issue of gender balance in its faculty." (The Philosophy web page lists 12 male and only 2 female faculty. Tut, tut, Philosophy!)

The next item deals with Women's Studies. The recommendation here commends the current staff of the program with no reservations. But the Women's Studies web page lists 10 core faculty, none of whom are male. Why no gender-balance wrist-slap here? We don't know. But perhaps it would be wise for Philosophy to avoid further trouble by changing its name to Men's Studies?

(II) Headaches in Grade School & Grad School

If you thought earning your advanced degree was a headache, don't expect relief once the sheepskin's in hand. Researchers at the Johns Hopkins School of Public Health report in February's Journal of the American Medical Association that tension headaches afflict 50 percent of people with graduate school degrees, compared to just 20 percent of those who only attended grade school. Also of note: women were 15 percent more likely to get tension headaches than men, and people in their 30s suffered more than any other age group.

POSSUM (Passim)

Random Readings & Culture Studies

". . . the erect male organ, not as itself, not even as image, but as the missing piece of the desired image, is thus equal to the square root of -1 of the highest produced meaning."


"If one examines capitalist theory, one is faced with a choice: either accept Sartrean absurdity or conclude that narrative is created by the collective unconscious. But the subject is interpolated into a subtextual dialectic theory that includes narrativity as a whole."

--(Look past the next item to identify the mystery author of this pensee.)


"A Jesuit publication. . . accused [Denis Diderot and his fellow] Encyclopedists of favoring freedom of thought. . . . Why did Abbe Mallet, the priest who wrote the article on Noah's Ark, spend no time at all on the Ark's spiritual significance and so much time on ignoble calculations of. . . how many man-hours Noah and his sons must have spent cleaning out the mountains of daily manure, [and] how many extra sheep had to brought aboard to provide food for the wolves and lions? Pope Clement XIII. . . ordered all Catholics who owned a copy to have it burned by a priest, or be excommunicated."

--Robert Wernick, Smithsonian 5/97 (78-79)

Possum's Mystery Author: This familiar-sounding gobbleygook was autogenerated by a mindless computer program, as reported in the London Daily Telegraph of March 11, 1998, Features Section, page 14.

We were well into our second pint schooners of Bass Ale when I asked Fred how things were at his university.

He stared unfocused into the amber essence without replying.

This is serious, I thought. Fred is always so effusive and informative. Something must be wrong.

We were sitting at the bar at the hotel where both of us were staying during the MLA conference. It had been good fortune to run into Fred. We had been graduate students together and were both on our way to successful academic careers. But ten years had passed since we had had a chance to talk informally.

Finally he said, in measured tones, "Do we professors have a justification and an obligation to uphold the integrity of the university?"

I knew I was in trouble now. Fred was getting serious.

"No more than we have an obligation to have a winning basketball team", I grinned, hoping he would appreciate the lighthearted response. He didn't. Something was really on his mind.

"Well", I tried again, "there are those who believe we are the university".

"Yeah, but the students believe they are the university, and administrators believe they are the university", he said glumly.

"Students I'll share the ownership with, but not the administrators", I said, thinking of the dean who once told me that all space in our building belonged to him. He did not mean that he had the responsibility to look after the space and to allocate it fairly, but that it actually did belong to him and that he could give it to whoever he wanted to.

We sat in silence for a while. Something was deeply troubling Fred.

"OK. So out with it", I said.

That was the permission he needed.

"Let me tell you what happened, and then I'll ask you again about our obligations".

"Two years ago our departmental chair finally found the dean's position she so desperately wanted and left. We got the standard letter from the dean telling us how wonderfully the previous chair had performed and asked us for our considered opinions on how to proceed. We had five professors who could have easily taken over the chair's job and most of us wrote long and thoughtful letters making suggestions. One month later the bombshell -- the dean had chosen James McDougal. Do you know him?" he asked.

"No, not personally. I may have met him years ago. I thought I knew most of your folks but ..."

"That's just the point", he said. "His specialty is Chaucer. And he does not want to teach anything else, and the courses he does teach require students to learn Middle English. He typically teaches a handful of students, and he wants to keep it that way. He hasn't had a graduate student in years and he has published almost nothing. A few years ago he got a small grant to translate an old text and then told everyone he was too busy to help with undergraduate advising, departmental affairs or other activities".

"You have some really top people in your department", I observed.

"Exactly. But the dean liked McDougal for some reason. I never did figure out why. But anyway, most of us in the department were really upset. We just could not picture having McDougal as the chair. He wasn't respected as a scholar or admired as a person, and he had this way of really pissing people off. Our department was heading for a rocky period if he became chair".

"You keep using the past tense", I observed. "What happened?".

"Well, I did an informal poll, asking others what they had written to the dean, and my suspicions were confirmed. In fact, several of them had suggested that whoever the dean appointed was fine except McDougal. So it became apparent that the letter-writing exercise was a waste of time. We naively believed that what we wrote would actually count for something. The dean had obviously already made up his mind and it made no difference what we said".

"That's awful", I commiserated. "Our dean is really neat about that. When he has a tough decision to make he comes to each of our offices and one-on-one gets our opinions and then tells us what he is thinking, inviting response. It's about as close to consensus as you can get in a university".

Fred was quiet. I immediately regretted bragging about my own dean.

"So what happened?" I finally asked.

"Well, here is where the question comes in. Do we professors have a justification and an obligation to maintain the integrity of the university? Suppose we have a dean who believes in the myth of omnipotence -- that the title imbues him with special wisdom lacking in all the rest of us and is not willing to appoint a chair who will do the best job for the students and faculty. Don't you think this is a subversion of the system a clearly immoral act?"

"Whoa!" I protested. "How did you get into morality there? Isn't this just an administrative decision?"

"That's what I first thought. But look at it this way. A departmental chair is such an important part of our everyday lives. A good chair can make our jobs interesting, exciting, challenging, and bring out the best in all of us. By the same token, a bad chair can cause a department to destroy itself from the inside. People will spend all their time grousing and complaining, will stay away from the office as much as possible, and generally be uncivil to each other. The quality of our jobs (including how well we teach our students) is a precious commodity. A bad chair causes this valuable commodity to be stolen from us, and stealing something is a morally significant act".

"OK. I'll give you that destroying a perfectly good department and making it dysfunctional is a moral wrong. So what?", I asked.

"Yes, but don't you see?", he responded. "If it is a moral act, then we have both a justification and an obligation to do something about it, just as we have a justification and an obligation to save an innocent life, or to expose those who lie. Likewise we have a moral obligation to prevent the dean from making a bad appointment".

"This is a bit scary", I ventured. "You are talking whistleblowing?".

He didn't answer the question, but continued the story.

"So I wrote a letter stating in effect that McDougal had little if any support in the department and that we wanted to have the decision reconsidered. I knew sending the letter to the dean would do little good, so I sent it to the provost. He had of course already approved the appointment and was therefore not likely to reverse the decision, and that's exactly what happened. So I went public and sent a copy of my letter to the university newspaper."

"Good god!", I exclaimed. "What happened then?"

"All hell broke loose. The students got into it. The graduate students especially were great, writing letters to the newspaper and holding discussions. Someone got a copy of McDougal's resume and this was photocopied and passed around, much to his embarrassment. Even the undergraduates got involved -- holding a rally in front of the English building. Eventually McDougal decided to withdraw from consideration and a new chair was appointed".

"Sounds like you won the battle then. Why the long look?" I asked.

"But I lost the war", he responded. "What used to be a really great job has turned into a miserable experience. The worst is that my relationship with my colleagues has changed. Most of them are afraid even to be seen with me. The associate dean, a friend of almost 30 years, admitted that he is afraid to have lunch with me"

He let that soak in and then continued.

"If you are an irritant in a system and make public what you believe to be an egregious wrong, nobody within that system will thank you. You have endangered the safety of the herd. Remember in the movie Dead Poets Society, when Robin Williams was fired? Who stood by him? Not a single faculty member. They were all glad it wasn't them".

The Bass Ale had long been finished and I was depressed. Fred was right, of course. He did the morally right thing, but at what price. I remembered once reading about whistleblowing, about needing both a justification and an obligation to be a whistleblower. But there was more. You were only obligated to be a whistleblower if you did not have to pay an unreasonable price. Fred had paid an unreasonable price.

Not knowing what else to say or do, I got up off my stool, put an arm around Fred and gave him a hug. He did not move or say anything. I left him at the bar staring into his empty schooner.

FERRET: Transgressive Deconstructions

In all fairness, we have to allow for circumstances beyond his control. It was not his fault that he was born to the life of a spoiled rich kid, the elder son of a family wealthy enough to afford a nurse, a cook, and even a chauffeur. Probably, too, he could not help the filial hatred that led him to drop his first name, Paul, so as to avoid honoring his father, the eminent surgeon Dr. Paul-Michel Foucault -- a hatred that may also have fueled his bitter animus against his father's profession in The Birth of the Clinic and similar studies. Certainly it wasn't his fault that during his teens the Germans conquered his country, producing in him a Vichy-style passivity during the war for which he compensated in the postwar period -- like so many others on the French Left -- by vilifying his bourgeois upbringing. Most importantly, he cannot be blamed for the irruption of homosexual desire that, when acted upon, produced intense self-loathing during his crucial teen age years, leaving him "prostrate for hours, ill, overwhelmed with shame." (1) Perhaps if he had been born a half-century later, he would have been spared this needless and groundless self-flagellation.

Given the foregoing difficulties, it is not surprising that in his young manhood Foucault lapsed near the state of madness that so largely preoccupied his subsequent scholarship. During his college years, his biographer says,

"Foucault withdrew into his solitude, leaving it only to scoff at the others with a ferocity that soon became notorious. . . . He argued with everybody. He got angry. He exuded in every direction a formidable level of aggression and, in addition, a pronounced tendency toward megalomania. . . . He was soon almost universally detested. His fellows thought him half mad. . . . One day someone. . . found him lying on the floor of a room where he had just sliced up his chest with a razor. Another time he was seen in the middle of the night chasing one of the other students with a dagger. . . . In the opinion of someone who knew him very well during this period, 'all his life he verged on madness'" (MF 26).

Luckily for Foucault, he proved capable of devising the perfect answer to his dilemma: a lifelong battle against every social entity authorized to define mad, criminal, or deviant behavior. (The latter two categories affected him in so far as a pedophiliac incident got him expelled from Poland in 1959.) Thus, says his biographer, his "entire oeuvre can be read as a revolt against the powers of 'normalization'" (MF x).

Of course we can't fault the man for devoting his tremendous research energies to justifying his own existence, for who among us is free from that compulsion? As transgressive deconstructionists, however, we in the Ferret camp are obliged to sniff out the "aporias" -- that's deconstructive gobbleygook for "contradictions" -- in the Foucault oeuvre. From the scores of lush specimens that rise before us, space permits us only a few choice examples.

To begin, in the 1950s he was a Communist who tooled around town in a spanking new Jaguar de luxe: certainly this scion of wealth could not be expected to share the privations of, let us say, a lifelong worker on a Jaguar assembly line. Nor did his claim that "we totally reject the world in which we [have] had to live" (MF 52) extend so far as to renounce other luxuries extracted from the sweat of someone else's proletarian labor. Throughout his lifetime his haute bourgeois family unit continually furnished the means for outstanding educational opportunities, incessant travel abroad, plush living quarters, and the slaking of every bodily appetite. So long as it lasted, therefore, his was a Communism for other people. He had joined the Party in 1950 after flunking his agregation exam (for which he had spent four years in preparation), and he left the Party in similar personal distress when it "condemned homosexuality as a bourgeois vice and a sign of decadence" (MF 56).

Our second aporia is the Voice Unheard in Foucault's massive study of crime and punishment. Certainly no civilized society can object to humane treatment of criminals, but no civilized order can survive the failure to constrain its most serious wrongdoers. Discipline and Punish: The Birth of the Prison (1975), possibly Foucault's most celebrated book, would have been more convincing had he chosen to give equal time -- or any time at all -- to the victims of rape, assault, extortion, and other major crimes committed by the prisoners whose plight inflamed his indignation. It is odd how Foucault's grand discovery -- that imprisonment constrains an inmate's physical body and subjects him to supervisory observation (otherwise known as "the gaze") -- occupies a circle of concern too small to encompass the harm inflicted upon the bodies of crime victims.

But though Foucault displayed little concern for the victims of conventional crimes, we would be mistaken to think he abjured his own impulse to Discipline and Punish his fellow humans. Au contraire, he favored savage retaliation against the bourgeois world he (falsely) claimed to have rejected totally, and he wanted this vengeance, moreover, to occur without recourse to the traditional niceties of judicial process. In Power/Knowledge (1980) he reproaches his radical compeers for their insufficient zeal on this point. Whereas they are cautious enough to call for a people's court, Foucault objects to even this kangaroo process coming between "the masses" and their thirst for immediate justice. It would seem that for him Robespierre remains the ideal model:

". . . the court, with its triple division into two disputing parties and the neutral institution, which comes to decisions on the basis of some concept of justice which exists in and for itself, seems to me a particularly disastrous model for . . . the development of popular justice. . . . After the States General of 1357 there was the peasant uprising; after 1789 there was 1793. Consequently this might be a good model."

--(Power/Knowledge: Pantheon, 1980, 29).

We will call this Foucaldian model of ideal justice Aporia Number Three.

Our final aporia involves the spectacular opportunism that governed his radical agenda. Having tried and failed (because of his homosexuality) to obtain high office in de Gaulle's Ministry of Education, he chose to remedy his lapse toward conformity by helping his Maoist/Trotskyite students trash the University of Vincennes. This was a new campus established by the French government to extend opportunity to its less privileged citizens -- such as children of Jaguar assembly line workers, let's say -- somewhat in the fashion of a branch campus of an American state university. In short order, the militant radicals smashed tons of brand-new equipment while fomenting "demonstrations, clashes with the police, pitched battles between Communists and leftists or among leftist cliques" (MF 206).

According to "all the witnesses, the philosophy department [which Foucault chaired] was in the front line of these constant disturbances," and Foucault was "one of the most virulent speakers" who publically vilified the police for trying to control this mayhem (MF 209, 206). Meanwhile, the philosophy department which he chaired aided the "students" in question by inventing novel ways of awarding course credits: "the professors shut themselves up in a room and the students slipped a little piece of paper, with their name written on it, under the door. They were listed as having passed" (MF 208). His Maoist colleague Judith Miller (Jacques Lacan's daughter, brought there by Foucault) explained that "the university is a piece of capitalist society" and she would strive to make it function "worse and worse" (MF 208).

Doubtless this infantile irresponsibility could be written off as just another academic French farce if our philosopher-revolutionary maintained a decent consistency in these antics. But as usual, his enmity toward the established order ceased at the point where our Noble Thinker might have something to lose in the game. Toward the most elite, establishmentarian academic institution in his country, the College de France, absolute deference was the tune du jour as MF lined up allies and pulled every string in sight to get himself elected to this holy of holies -- a feat he accomplished in 1970. Thereafter he could preach violent hostility to the bourgeois status quo while comfortably ensconced within its most prestigious academic citadel.

To his credit, Foucault's prodigious scholarship rolled on unimpeded by his political posturing. His final years were given over to a vast project entitled The History of Sexuality, whose third volume was cruelly cut short by his death in the then (1984) incipient AIDS epidemic. For all its epic scale, however, the History seems rather narrowly focused on the pleasures and problems of non-reproductive sexuality, much in the style of his lecture series years earlier on "the concept of love in French literature from the marquis de Sade to Jean Genet" (MF 78). You've read it right: "the concept of love," he called it, from de Sade to Genet.

"Veridiction" -- Speaking the Truth -- was the mantra of Foucault's later years, an ethical imperative that, as we have seen, he applied selectively. But in excavating the archeology of Foucault's life, we do come at last to a bedrock sediment of Veridiction, literally etched in stone:

Simple as it appears, two facts in this epitaph on Foucault's gravestone stand out in terminal relief. First, the restoration of his full patronymic gives credit at last to the loyal bourgeois family unit that launched his academic career. And second, that grandiose title erected over his remains -- the academic equivalent of the Order of the Garter -- comprises an ultra-bourgeois final curtsy to tradition, hierarchy, and respectability. Given the other aporias we have seen, we cannot be too surprised that the radical revolutionary Professor's last word is to affirm his honorific title. It must have meant a lot to him--the College de France, that red Jaguar of academic desire. Perhaps in a way the Le Monde obituary had it right. As an index to academic radicalism at large, the contrast between Foucault's wild theories and his actual servitude to conventional bourgeois values could be "the most important event of thought in our century."

(1) Didier Eribon, Michel Foucault, transl. by Betsy Wing (Harvard Press, 1991) 27 (hereafter MF). Also consulted: David Macey, The Lives of Michel Foucault and James Miller, The Passion of Michel Foucault.


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