Law Commons^™

Theory Matters—And Ten More Things I Learned From Martha Chamallas About Feminism, Law, And Gender, Deborah L. Brake

Articles

This Festschrift article celebrates the scholarship of Martha Chamallas, Distinguished University Professor and Robert J. Lynn Chair in Law Emeritus of the Ohio State University Moritz College of Law, and one of the most impactful scholars of feminist legal theory and employment discrimination of her generation. Mining the insights of Chamallas’s body of work, the article identifies ten core “lessons” relating to feminism and law drawn from her scholarship and academic career. It then weaves in summaries and synthesis of her published works with discussion of subsequent legal and social developments since their publication. These lessons (e.g., feminism is plural; …

Gendered Normativities: The Role And Rule Of Law, Susanne Baer

Book Chapters

In the 21st century, human rights are as present as they are endangered. Specifically, sex/gender equality rights are contested, or actively abridged, which is to be understood as an attack on women and on people who do not fit a ‘normal’ pattern of gender relations. Yet in addition, these are attacks on democratic constitutionalism itself. The article argues that to properly understand the recent contestations of human rights, one must distinguish between critique and attack, and revisit the very form and content of human rights, to deal with law’s ambivalence, such as ‘legal colonialism’, and also take into account critical …

Experimental Meets Intersectional: Visionary Black Feminist Pragmatism And Practicing Constitutional Democracy, Linda C. Mcclain

Faculty Scholarship

That pragmatism can do-and already is doing-real work to repair and improve constitutional democracy in the United States is a conviction voiced in the academy, in social movements, and in social media. But what does pragmatism mean, as used in these contexts? Sometimes, pragmatism seems to connote simply being practical (rather than idealistic) and focusing on results. But sometimes, commentators are saying more: pragmatism as a distinctive political philosophy has the power to fuel meaningful democratic change. This Article focuses on the creative and productive melding of classical American pragmatism (as exemplified by John Dewey and others) with feminism. In …

Crisis And Cultural Evolution: Steering The Next Normal From Self-Interest To Concern And Fairness, Robert A. Bohrer

Faculty Scholarship

This essay examines the current time of crisis and offers a vision of the way in which our society and our law can evolve in response. Crises of this scale are evolution-forcing events and I argue that the current moment can move us towards a fundamentally different vision of law and justice. It is the first essay or article to show that the autonomous pursuit of self-interest was a common assumption or value in the major intellectual forces of the twentieth century: classical free market economics, behavioral economics, and sociobiology, as well as in the competing visions of a just …

(Un)Common Law And The Female Body, Lolita Buckner Inniss

Publications

A dissonance frequently exists between explicit feminist approaches to law and the realities of a common law system that has often ignored and even at times exacerbated women’s legal disabilities. In The Common Law Inside the Fe-male Body, Anita Bernstein mounts a challenge to this story of division. There is, and has long been, she asserts, a substantial interrelation between the common law and feminist jurisprudential approaches to law. But Bernstein’s central argument, far from disrupting broad understandings of the common law, is in keeping with a claim that other legal scholars have long asserted: decisions according to precedent, …

Formative Projects, Formative Influences: Of Martha Albertson Fineman And Feminist, Liberal, And Vulnerable Subjects, Linda C. Mcclain

Faculty Scholarship

This essay, contributed to a symposium on the work of Professor Martha Albertson Fineman, argues that Fineman is a truly generative and transformative scholar, spurring people to think in new ways about key terms like “dependency,” “autonomy,” and “vulnerability” and about basic institutions such as the family and the state. It also recounts Fineman’s role in creating spaces for the generation of scholarship by others. The essay traces critical shifts in Fineman’s scholarly concerns, such as from a theory of dependency to vulnerability theory and from a gender lens to a skepticism about a focus on identities and discrimination. In …

Recovering Socialism For Feminist Legal Theory In The 21 St Century, Cynthia Grant Bowman

Cornell Law Faculty Publications

This Article argues that a significant strand of feminist theory in the 1970s and 1980s — socialist feminism — has largely been ignored by feminist jurisprudence in the United States and explores potential contributions to legal theory of recapturing the insights of socialist feminism. It describes both the context out of which that theory grew, in the civil rights, anti-war, and anti-imperialist struggles of the 1960s, and the contents of the theory as developed in the writings of certain authors such as Heidi Hartmann, Zillah Eisenstein, and Iris Young, as well as their predecessors in the U.K., and in the …

Feminism And International Law In The Post 9/11 Era, Jayne C. Huckerby

Faculty Scholarship

No abstract provided.

Women And The Free Exercise Clause: Some Thoughts About A (Religious) Feminist Reading, Marie Failinger

Faculty Scholarship

Among the dozens of Supreme Court cases on the free exercise of religion, women play a mostly invisible part. We know of Adell Sherbert and Frieda Yoder; and less famously, Alma Lovell, Lillian Gobitis, Paula Hobbie, Sarah Prince, and Lucie McClure. We know that these women go out into the streets to tell the Good News, refuse to salute idols, refuse to work on the Sabbath, and refuse to go to school in violation of their religion. But, we do not hear their voices very loudly.

At the same time, until recently, we have consistently heard only one woman's voice …

Objectivity: A Feminist Revisit, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

In Her Own Voice: Ann Scales As Philosopher, Storyteller, Feminist, And Jurisprude, Patricia A. Cain

Faculty Publications

This Essay references numerous articles written by Ann Scales and discusses ways in which she spoke as a philosopher, a storyteller, a feminist, and a jurisprude. The author’s favorite lines from these articles are reproduced and explored in the context in which they were written. Many of the quotes are witty and capture the gist of a situation or a feminist point without the need for further explanation. Others express a point of view in such creative ways that they bring new insights to those of us who grapple with feminist issues.

A Law And Literature Approach To Stumped By Debora Threedy, Kristin (Brandser) Kalsem

Faculty Articles and Other Publications

In this response, I will begin by identifying questions and issues about Stumped that might present themselves from law in literature and law as literature perspectives. This analysis will be followed by a discussion of the play from a particular law and narrative approach, one that ideologically is allied with feminist jurisprudence and critical race studies. Finally, I will conclude by examining the play in connection with scholarship on the cultural study of law, specifically emphasizing ways in which law and literature mutually constitute one another as opposed to being distinct categories of knowledge.

Feminist Legal Realism, Mae C. Quinn

Journal Articles

This Article begins to rethink current conceptions of two of the most significant legal movements in this country1—Legal Realism and Feminist Jurisprudence. The story of Legal Realism has been retold for decades. Authors have dedicated countless books,2 law review articles,3 and blog posts4 to the subject. Legal and other scholars repeatedly have attempted to define better the movement and ascertain its adherents. Although the usual suspects— Karl Llewellyn, Roscoe Pound, and Jerome Frank—are almost always a part of the conversation, surprisingly few agree on the totality of Realism’s personage or parameters. The lists of those considered realists— and there are …

Proposition 26: The Cost To All Women, Emma S. Ketteringham, Allison Korn, Lynn M. Paltrow

Faculty Scholarship

No abstract provided.

Ceremonial Deism And The Reasonable Religious Outsider, Caroline Mala Corbin

Articles

State invocations of God are common in the United States; indeed, the national motto is "In God We Trust." Yet the Establishment Clause forbids the state from favoring some religions over others. Nonetheless, courts have found the national motto and other examples of what is termed ceremonial deism constitutional on the ground that the practices are longstanding, have de minimis and nonsectarian religious content, and achieve a secular goal. Therefore, they conclude, a reasonable person would not think that the state was endorsing religion.

But would all reasonable people reach this conclusion? This Article examines the "reasonable person" at the …

Desperately Seeking A Moralist, Robin West

Georgetown Law Faculty Publications and Other Works

In a recent issue of “Unbound”, Janet Halley reviews my book “Caring for Justice”, criticizing it for exhibiting a broad range of the problems she sees in all forms of "identitarian" legal writing, and therefore worthy of detailed critique. Halley begins her review by listing the representative missteps she finds in both my book and in identitarian politics generally, including, although certainly not limited to, an identification of the site of the subordinated group's injuries-for women, reproduction and sexuality with the site of its ethical lives and insights; a tendency to differentiate and present the interests of subordinate and dominant …

Law, Literature, And Libel: Victorian Censorship Of Dirty Filthy Books On Birth Control, Kristin (Brandser) Kalsem

Faculty Articles and Other Publications

This article presents a case study of the feminist jurisprudence performed by three early birth control advocates: Annie Besant, Jane Hume Clapperton, and Marie Stopes. In the late nineteenth and early twentieth centuries, the subject of birth control was so taboo that serious efforts were made to keep John Stuart Mill from being buried in Westminster Abbey because of his sympathies with the idea of family limitation. The threat of being charged with obscenity and immorality, whether in a legal indictment, in a literary review, or in the court of public opinion, effectively silenced much public discourse on this important …

Looking For Law In All The Wrong Places: Outlaw Texts And Early Women's Advocacy, Kristin (Brandser) Kalsem

Faculty Articles and Other Publications

Recent Supreme Court decisions such as Atkins v. Virginia and Lawrence v. Texas specifically address the linkages between shifting cultural attitudes and the evolution of law. In this Article, I examine the mutually constitutive relationship between legal and cultural developments from a historical perspective and illustrate the necessity of looking to sources that I define as outlaw texts in order to access invaluable information about the process of legal change.

To demonstrate how a study of outlaw texts can enrich our understanding and critical consideration of law and legal history, this Article presents detailed analyses of specific examples of nineteenth-century …

To Do Is To Be, Zanita E. Fenton

Articles

No abstract provided.

Silence Compounded - The Conjunction Of Race And Gender Violence, Zanita E. Fenton

Articles

No abstract provided.

On Discipline And Canon, Katherine M. Franke

Faculty Scholarship

While the title of the panel I participated in was "Why Do We Eat Our Young?", I think I prefer: "On Discipline and Canon," or to rework the title of the panel in the program, "Why Do We Eat Our Girlfriends?"

In my short remarks, I would like to raise a set not of answers, but of questions that over the last year or so a few of us have been discussing outside of our published work. These questions seem apt both for this panel and for this conference. Last November a group of really wonderful women at the University …

Cracking Foundations As Feminist Method, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

The Liberal Future Of Relational Feminism: Robin West's Caring For Justice, Linda C. Mcclain

Faculty Scholarship

Robin West is one of the most prolific1 and creative members of the legal academy. Her distinctive voice, as expressed in several books and numerous scholarly articles, informs and shapes debates within such diverse areas as constitutional theory (West 1990b; West 1994), feminist jurisprudence (West 1987; West 1988), and law and literature (West 1993). Indeed, some of her early articles concerning feminist jurisprudence (West 1987, West 1988) are now "classics" in a relatively new field of inquiry and appear in virtually every anthology or textbook in the field (Bartlett and Kennedy 1991, 201; Becker, Bowman, and Torrey 1994, 90; Fineman …

Feminism And Family Law, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

Apology Excepted: Incorporating A Feminist Analysis Into Evidence Policy Where You Would Least Expect It, Aviva A. Orenstein

Articles by Maurer Faculty

No abstract provided.

Mirrored Silence: Reflections On Judicial Complicity In Private Violence, Zanita E. Fenton

Articles

Tracy and John had been married for seven years. They were so in love when they met at college. He brought her flowers and wanted to spend all of his free time with her. Everything was perfect. But it seemed to become increasingly tumultuous as soon as they got married, two years later. He didn't just want to spend all of his time with her; he had to know what she was doing every waking moment of the day. He had to approve of her activities and her friends. He called her at work every day. If she wasn't at …

Domestic Violence In Black And White: Racialized Gender Stereotypes In Gender Violence, Zanita E. Fenton

Articles

No abstract provided.

A Feminist View Of American Elder Law, Rebecca Korzec

All Faculty Scholarship

ANY discussion of contemporary American elder law must consider gender issues. A number of gender concerns are readily discernible, including workplace and family issues. Significantly, sex-based disparities are increasing within the elderly population. In turn, these disparities exacerbate problems of fairness and equity in meeting intergenerational family needs and expectations.

As with childrearing, in contemporary American society, the major caregiving responsibility for the growing number of frail elderly falls largely on women rather than men. With an increasing number of women working outside the family home, the intersection of work and family issues is receiving considerable attention both in academic …

Working On The "Mommy-Track": Motherhood And Women Lawyers, Rebecca Korzec

All Faculty Scholarship

This Article examines the effects of motherhood on the careers of women lawyers and the efficacy of the 'mommy-track' as a means of ameliorating these effects. Part I examines the current position of women in the legal profession. Part II examines the nature of 'motherhood' and the risk/benefit function of 'mommy-tracking.' Part III analyzes the 'mommy-track' from the perspective of feminist jurisprudence. Finally, Part IV examines issues related to workplace transformation. It is the position of this paper that 'mommy-tracking' reinforces undesirable stereotypes. Ironically, this apparent 'solution' actually forestalls the transformations, at home and at work, which could enable women …

Rape, Race And Representation: The Power Of Discourse, Discourses Of Power And The Reconstruction Of Heterosexuality, Elizabeth M. Iglesias

Articles

No abstract provided.