From Class Actions to Miss Saigon: The Concept of Representation in the Law

Abstract

The representation debates over casting "Miss Saigon" and law school faculties reflect the prevalence of contemporary assumptions about group differences. They reflect arguments made on behalf of historically excluded groups that group membership serves as a proxy for shared experiences and especially common experiences as victims of societal prejudice. Opponents, styled as defenders of neutrality, resist such arguments because they undermine the commitment to treating individuals as individuals. Maybe we can understand the debates better by seeing connections to deeper confusions about the concept of representation throughout our society, made especially vivid in legal and political contexts. If treated as problems of representation, these issues must be examined in light of the questions: who may speak for someone else? What is the difference between symbolizing or standing for another, on the one hand, and advancing the interests of another? Which should a representative pursue? These are hard issues. With the help of some philosophic debates I will suggest that we have long been confused about them. I will then argue that two specific developments in legal and political thought cast new confusion - but also new light - on the problem of representation. I look first to the contributions of people concerned with difference, such as feminists and critical race theorists, and then to the contributions of a variety of scholars interested in empathy. After exploring the genuine tension between these two emerging schools of thought, I will return to a few of the legal questions I have just mentioned about who can and who should represent another. And perhaps, I will also get a chance to return to theater before I am done.