Law Commons^™

The Love In Loving: Overcoming Artificial Racial Barriers, Justice Leah Ward Sears (Ret.), Sasha N. Greenberg

Notre Dame Law Review Reflection

The rewritten opinion of Loving v. Virginia in Feminist Judgments: Rewritten Opinions of the United States Supreme Court is in stark contrast to the original. Professor Teri McMurtry-Chubb’s judgment for the court “unmasks—and renders unavoidable— the link between America’s history of White supremacy and patriarchy and America’s legal structures for regulating marriage and families.” The feminist opinion relies almost entirely on legal, social, and cultural history, in particular the history of marriage and family relationships among and between Blacks and Whites during the colonial, antebellum, and postbellum eras in the American South.

For the authors of this response Essay, both …

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Notre Dame Law Review Reflection

Feminist Judgments takes us to a key moment in the history of sexual harassment law. In Meritor Savings Bank v. Vinson, the Supreme Court recognized for the first time that both quid pro quo and hostile environment sexual harassment violate Title VII of the Civil Rights Act of 1964. It also held that to be actionable under Title VII, sexual advances must be (1) “unwelcome” and (2) “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” The latter part of the test (“sufficiently severe or pervasive”) fits well into the …

Rewriting Judicial Opinions And The Feminist Scholarly Project, Linda L. Berger, Kathryn M. Stanchi, Bridget J. Crawford

Notre Dame Law Review Reflection

In 1995, the authors of a law review article examining “feminist judging” focused on the existing social science data concerning women judges and compared the voting records and opinions of the only female Justices on the U.S. Supreme Court: Ruth Bader Ginsburg and Sandra Day O’Connor. Based on this review, the authors concluded that appointing more women as judges would make little difference to judicial outcomes or processes. The authors accused those who advocated for more women on the bench of having a hidden feminist agenda and bluntly concluded that “[b]y any measure, feminist judges fit very uneasily in most …

Feminist Judgments & #Metoo, Margaret E. Johnson

Notre Dame Law Review Reflection

The Feminist Judgments book series and the #MeToo movement share the feminist method of narrative. Feminist Judgments is a scholarly project of rewriting judicial opinions using feminist legal theory. #MeToo is a narrative movement by people, primarily women, telling their stories of sexual harassment or assault. Both Feminist Judgments and #MeToo bring to the surface stories that have been silenced, untold, or overlooked. These narrative collections can and do effectuate genderjustice change by empowering people, changing perspectives, opening up new learning, and affecting future legal and nonlegal outcomes.

Feminist Judgments And Women's Rights At Work, Gillian Thomas

Notre Dame Law Review Reflection

The history of the law’s treatment of working women is largely a history of the law’s treatment of women’s bodies. Overwhelmingly created by male judges, that jurisprudence considers women from a remove—their physicality, their reproductive capacity, their stature, their sexuality—eclipsing meaningful consideration of their lived experience, on or off the job. As vividly illustrated by so many of the alternative rulings contained in Feminist Judgments, that erasure resulted in Supreme Court decisions that—even when they came out the “right” way, that is, in favor of the female litigant—squandered opportunities for advancing sex equality.

The tantalizing notion of “what might …

Revisiting Roe To Advance Reproductive Justice For Childbearing Women, Elizabeth Kukura

Notre Dame Law Review Reflection

The rewritten opinions that comprise Feminist Judgments together provide a powerful critique of judicial decisionmaking that renders certain women’s experiences invisible. By reimagining key Supreme Court decisions, the opinion writers unmask various ways that gendered conceptions of social roles are deeply entrenched in the rulings and reasoning of the highest court of the United States. The authors also show, through their alternative texts, that opinions which are celebrated as women’s rights victories can nevertheless impede progress toward equality and liberty.

Kimberly Mutcherson’s rewritten concurrence in Roe v. Wade illustrates the missed opportunities and unintended consequences that have made the landmark …

Looking To The Litigant: Reaction Essay To Feminist Judgments: Rewritten Opinions Of The United States Supreme Court, Claire B. Wofford

Notre Dame Law Review Reflection

Feminist Judgments’s focus on jurists alone is not unusual. My own discipline has devoted a great deal of study to understanding why and how the justices of the U.S. Supreme Court make the decisions they do. Some of the scholarship has even examined whether women judges might operate differently than their male counterparts, though the findings have been mixed at best. The emphasis, moreover, is understandable and laudable, as it is jurists who have the final say on the content of law.

Emphasizing judicial behavior, however, unfortunately overlooks the fundamental passivity of the courts. As much as they might …

Extending The Critical Rereading Project, Gabrielle Appleby, Rosalind Dixon

Notre Dame Law Review Reflection

In this reflection, we want to explain a project in Australia that extends the feminist judgments project and adapts it specifically for the purpose of teaching critical theory, critical legal thinking, and the assumptions inherent in the legal method.

Feminist Judgments And The Future Of Reproductive Justice, Sarah Weddington

Notre Dame Law Review Reflection

Roe v. Wade is one of the twenty-five Supreme Court cases that has been rewritten from a feminist perspective by an imaginative group of law professors and lawyers. This Essay is based on remarks made by Ms. Weddington at a panel discussion held at Temple University Beasley School of Law on November 13, 2017.

Feminist Judgments And The Rewritten Price Waterhouse, Sandra Sperino

Notre Dame Law Review Reflection

In Feminist Judgments, Professor Martha Chamallas reimagines the canonical case of Price Waterhouse v. Hopkins. In that case, the Supreme Court recognized that a plaintiff can prevail on a Title VII claim by showing that a protected trait was a motivating factor in a negative employment outcome. In that case, the Court noted that plaintiffs in discrimination cases should not be required to prove but-for cause to prevail.

The introduction to the Professor Chamallas concurrence correctly notes many of the rewritten opinion’s strengths. Professor Chamallas provides richer detail about the facts underlying the case and the context in …

The Limits Of Natural Law Originalism, Mikolaj Barczentewicz

Notre Dame Law Review Reflection

In Enduring Originalism, Jeffrey Pojanowski and Kevin C. Walsh outline how originalism in constitutional interpretation can be grounded in modern natural law theory as developed by John Finnis. Their argument to that effect is powerful and constitutes a welcome addition both to natural law theory and to originalist theory. However, the authors chose to present their account as a superior alternative to, or modification of, the “positive” (“original law”) originalism of Stephen Sachs and William Baude. It is that aspect of the paper that I focus on in this short Essay. Contrary to their strong claims in that direction, …