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Equality And Difference - The Restrained State, Martha Albertson Fineman

Faculty Articles

Contemporary American law, culture, and political theory restrain the concept of equality as a tool of social justice. Equality in conjunction with a strong emphasis on personal liberty operates as a mandate for curtailing state action, rather than an aspirational measure of the comparative wellbeing of individuals. As a check on state involvement, our cramped notion of equality limits the state's ability to affirmatively address economic, political, social, and structural inequalities.

As interpreted in modern Supreme Court jurisprudence, the Equal Protection Clause of the U.S. Constitution actually works to restrict the remedial ability of the state. Equality is understood as …

Challenging Law, Establishing Differences: The Future Of Feminist Legal Scholarship, Martha Albertson Fineman

Faculty Articles

I begin with my version of the ideally antagonistic interaction of feminist theory with the law. I locate my discussion between the extremes of grand theory and unique experience. I consider the central, pressing task of feminist theory to be challenging existing law and legal doctrines through the articulation and establishment of a theory of difference. In this essay I divide my discussion of the theory of difference into two sections. The first section concerns the theoretical and political necessity of establishing the differences between men and women. Articulation of the extent of this manifestation of difference illustrates that the …