Feminist Judgment Research Articles

The Women Take Over: Oral argument, rhetorical skepticism, and the performance of feminist jurisprudence in Whole Women’s Health v. Hellerstedt

ABSTRACTWhole Women’s Health v. Hellerstedt was the most important abortion case to come before the United States Supreme Court in 25 years. It was also the first time that three women were seated on the high court to hear a case that challenged the fundamental right to choose abortion. I investigate the questioning by Justices Ginsburg, Sotomayor, and Kagan at oral argument for Whole Women’s Health as a rhetorical enactment of feminist judging and argue that the rhetorical skepticism of the SCOTUS women—their persistent questioning, defiant expressions of doubt, and incredulous style—challenged the discursive boundaries of abortion jurisprudence and advanced a feminist demand that regulations to abortion rights receive heightened scrutiny from the courts. Importantly, Whole Women’s Health demonstrates how rhetorical skepticism may operate as a powerful mode of feminist legal invention—to disrupt the norms of legal reasoning and draw the traditions of legal discourse into doubt in order to authorize a discursive space for feminist legal judgment.

The Necessity of Multi-Stranded Feminist Judicial Opinions

This article examines and evaluates Feminist Judgments of Aotearoa New Zealand, Te Rino: A Two Stranded Rope, the latest published book in the growing collection of global feminist judgments projects, locating it within the context of the other global feminist judgments projects. Feminist Judgments projects are exploding across the globe, with completed projects in Canada, England, Australia, the United States and Ireland, an international law feminist judgments project well under way, and projects in Scotland, India, Mexico and Africa in process. In the U.S., a series of subject-matter specific feminist judgment books is in progress, the first volume of which has already been published. The participants in these projects have asked what difference a judge with a feminist perspective could have made in the reasoning or result in a case, and then attempted to show, through the writing of “shadow opinions,” what that judgment might look like. Through the lens of Feminist Judgments: Te Rino, this article explores and compares how the various international Feminist Judgments projects have taken on the enduring jurisprudential question of how much a judge’s individual perspective matters in decision making.

Impact of the Feminist Judgment Writing Projects: The Case of the Women’s Court of Canada

The first feminist judgment writing project, the Women's Court of Canada (WCC), published its initial set of judgments ten years ago in 2008. Although the WCC has led to feminist judgment projects in several other jurisdictions, research shows that the WCC judgments have not been cited very extensively by other academics, let alone by courts, tribunals or lawyers. This article explores whether this lack of citations is cause for concern, raises some possible explanations, and discusses strategies for giving feminist judgment projects broader and deeper impact. El primer proyecto feminista de redacción de sentencias, el Tribunal de Mujeres de Canadá (WCC son sus siglas en inglés), publicó su primer conjunto de sentencias hace diez años, en 2008. Aunque el WCC ha liderado proyectos de tribunales feministas en otras jurisdicciones, la investigación demuestra que las sentencias del WCC no han sido frecuentemente citadas por otros académicos, mucho menos aún por tribunales y abogados. Este artículo analiza si esta ausencia de citaciones debiera preocuparnos, propone algunas posibles explicaciones y debate estrategias para dotar a los proyectos de sentencias feministas de un mayor y más profundo impacto.

The Necessity of Multi-Stranded Feminist Judicial Opinions

This article examines and evaluates Feminist Judgments of Aotearoa New Zealand, Te Rino: A Two Stranded Rope, the latest published book in the growing collection of global feminist judgments projects. Feminist judgments projects are exploding across the globe, with completed projects in Canada, England, Australia, the United States and Ireland, an international law feminist judgments project well under way, and projects in Scotland, India, Mexico and Africa in process. In the US, a series of subject-matter specific feminist judgment books is in progress, the first volume of which has already been published. The participants in these projects have asked what difference a judge with a feminist perspective could have made in the reasoning or result in a case, and then attempted to show, through the writing of ‘shadow opinions,’ what that judgment might look like. Through the lens of Feminist Judgments: Te Rino, this article, written by the editors of the US feminist judgments book, explores and compares how the various international feminist judgments projects have taken on the enduring jurisprudential question of how much a judge’s individual perspective matters in decision making.

‘Reflections on Little Rock’ and Reflective Judgment

Reflections on Little Rock (RLR) is one of Hannah Arendt’s most controversial writings. Read from the perspective of the political philosopher, it appears even more contentious than her famous remarks in Eichmann in Jerusalem. In the last two decades, a number of critical contributions have been published addressing this essay, highlighting how it casts serious doubts on the correctness of Arendt’s dealing with the racial question and, more generally, on the tenability of central elements of her political thought – e.g., her distinction between the political and the social. However, only occasional – and, as I will try to demonstrate, quite imprecise – analyses of the implications of RLR for an understanding of Arendt’s view of judgment have been produced. The aim of the present article is to reread what both Arendt’s position on judgment and its main contemporary reformulation, advanced by Linda Zerilli, imply for the making of political choices in pluralistic societies. Special attention will be also paid to the relation between the particular and the universal in Arendtian thought. In the first section I will reconstruct the main (factual and argumentative) weaknesses of RLR, while in the second a detailed assessment of the criticisms relating RLR and Arendt’s view of judgment will be provided. Finally, in the last section I will discuss at length Zerilli’s conception of feminist judgment.

Justice Betty King: A Study of Feminist Judging in Action

Justice Betty King sat on the Supreme Court of Victoria for 10 years from 2005–15. Prior to that she was a judge of the Victorian County Court from 2000–05 after a career at the Victorian Bar from 1975–2000. During her career she was a pioneer for women in many respects, being only the 24th woman called to the Victorian Bar, the first woman prosecutor in Victoria, the first woman Commonwealth prosecutor, and one of the first Victorian women appointed a QC.

Troubling Judgment: The Northern/Irish Feminist Judgments Project

This paper introduces the scope and methodology of the Northern/Irish Feminist Judgments Project. This Project inaugurates a fresh dialogue on gender, legal judgment, judicial power and national identity in Ireland and Northern Ireland, by engaging in a collective process of writing ‘missing’ feminist judgments in a series of legal cases that have been significant in shaping Irish and Northern Irish law. Through this process of judicial re-imagining, the project has taken into account peculiarly Northern/Irish concerns in investigating how gender is shaped through judicial practices and how the Northern/Irish judiciaries have contributed to the construction of a gendered national identity across the island since the founding of the two jurisdictions almost a century ago. In considering how themes of gender and national identity have cross-cut women’s experiences and activism in both jurisdictions, our project – following on from feminist judgments projects in other common law jurisdictions such as Canada, England, Australia and most recently, the USA – takes the feminist judging methodology in important and challenging new directions.

The Implementation of Feminist Law Reforms

In 2005, the Australian State of Victoria abolished the controversial partial defence of provocation. Part of the impetus for the reforms was to challenge provocation’s victim-blaming narratives and the defence’s tendency to excuse men’s violence against intimate partners. However, concerns were also expressed that these narratives and excuses would simply reappear at the sentencing stage when men who had killed intimate partners were convicted of murder or manslaughter. This article analyses post-provocation sentencing judgments, reviewing cases over the 10-year period since the reforms in order to determine whether these concerns have been borne out. The analysis suggests that at the level of sentencing outcomes they have not been borne out, although at the level of discourse the picture is more mixed. While sentencing narratives continue to reproduce the language of provocation, at the same time, post-provocation sentencing appears to provide opportunities for feminist judging – picking up on the spirit of the reforms – which have been taken up by some judges more than others.

Judging in lower courts: Conventional, procedural, therapeutic and feminist approaches

AbstractRecent theorising about feminist judging has concentrated on appellate courts and their judgments. This paper develops a conceptualisation of feminist judging in lower, first instance courts, which are dominated by high case volume and limited time for each matter, with decisions given orally and ex tempore rather than in elaborated written judgments. Through careful accounts of the philosophy, goals and practices of conventional as well as newer, more engaged approaches to judging, the paper compares and contrasts feminist judging with other approaches to judging in the lower courts. This entails considering dimensions such as the judicial officer's orientation to substantive law and practice in court, concepts of fairness, ethical commitments, the view of the defendant, and judicial qualities and capacities.

Righting Sarla Mudgal v Union of India and Others

This paper presents a feminist alternative judgment or a feminist (shadow) judgment to the Supreme Court of India’s judgment in Sarla Mudgal v Union of India and Ors. This shadow judgment is inspired by the Feminist Judgments Projects in UK, Australia, Canada, and other places to radically reimagine the role of a judge to adjudicate differently by remaining faithful to the legal and constitutional rules that bind her. The project situates writing alternative judgments to judgments that could have been written better or written differently by using a feminist lens. In Sarla Mudgal, the Supreme Court was specifically called to examine the validity of a Hindu marriage between a Hindu man and a Hindu woman and the issue of bigamy by the former after contracting a second marriage with another Hindu woman by a fraudulent conversion to Islam. However, instead of putting the responsibility of bigamy on the Hindu men, the SC blamed the act on the plurality of personal laws and the lack of a uniform civil code. Sarla Mudgal is an example how misplaced judicial zeal ends up as Hindutva’s uniform civil code stick to beat minorities with. The shadow judgment, written in the form of a separate but concurring opinion, explores whether there was any possibility of denouncing bigamy of Hindu men and holding the bigamous men responsible without ascribing their bigamy as a product of Muslim personal laws.

Commentary on Geduldig v. Aiello

This chapter of FEMINIST JUDGMENTS: REWRITTEN OPINIONS OF THE UNITED STATES SUPREME COURT (Linda Berger, Bridget Crawford & Kathy Stanchi, eds. 2016) provides commentary on Lucinda Finley’s rewritten majority opinion in Geduldig v. Aiello, 417 U.S. 484 (1974). This commentary chapter complements the rewritten opinion, providing background material, analysis of the feminist judgment, and reflections on the implications of the feminist judgment for what the law of sex equality could have been. In Geduldig, the United States Supreme Court infamously held that pregnancy discrimination is not sex discrimination under the Equal Protection Clause of the Fourteenth Amendment. The Geduldig decision upheld a California state disability insurance program that denied benefits for pregnancy-related disability, while granting benefits for virtually every other disabling event ranging from prostatectomies to cosmetic surgery. Despite sustained criticism, the Geduldig decision has never been explicitly overruled and continues to constrain women’s access to substantive equality and reproductive liberty. Lucinda Finley’s feminist judgment responds to the faulty formalist logic of the original opinion in several important, distinctively feminist ways. Finley’s feminist judgment reaches beyond the formal appearance of justice and seeks substantive fairness for women in the public sphere. The landscape of sex equality law would look dramatically different if the Court had adopted Lucinda Finley’s feminist judgment—a tantalizing possibility since the intellectual foundations for this feminist judgment existed at the time.

Feminist Judgment: E v Chief Constable of Ulster [2008] UKHL 66

A dissenting judgment in the UK House of Lords in the Holy Cross case. In this case the House of Lords dismissed a challenge to the policing of Loyalist disturbances around the Holy Cross Girls School in North Belfast in 2001. The judgment concludes that the police did owe positive obligations to the school children and their families under Article 3 ECHR which were not fulfilled by the operation put in place to contain the disturbances.

Women are not a Proxy: Why the Constitution Requires Feminist Judges

ABSTRACTThe South African Constitution entrenches the achievement of equality as a founding value and the full and equal enjoyment of all rights and freedoms as a right and prohibits discrimination based on both sex and gender. Feminism is a movement to end sexism, sexist exploitation and oppression and to end all forms of gender discrimination. The Constitution, at its core, therefore embodies a feminist ideology. This has implications for the interpretation and application of all law and policy, including s 174 of the Constitution which requires the Judicial Service Commission (JSC) to consider ‘the need for the judiciary to reflect broadly the racial and gender composition of South Africa when judicial officers are appointed’. Broadly, the JSC's conduct between 1994 and 2014 evidences a failure to understand both gender and its constitutional mandate in terms of s 174 to proactively pursue the appointment of both female and feminist judges. Attempts to appoint more women, absent an appropriate understanding of gender, have resulted in both subtle and overt discrimination against female candidates for judicial selection. In order to remedy its misguided approach and fulfil its mandate the JSC must produce detailed guidelines on its approach to gender transformation of the judiciary, grounded in a feminist understanding of the Constitution. A unified feminist movement which embraces South Africa's feminist Constitution, with the support of a broad coalition of human rights advocacy groups and activist organisations, is urgently needed to guide the JSC in its understanding of feminism and gender, but also to hold the JSC to account when it betrays this mandate. Women are not a proxy for feminism; the South African judiciary is in dire need of a more feminist face.

Judicial fictions and the fictive feminists: re-imagination as feminist critique in PGA v The Queen

Hale's dictum about conjugal rights suggests that imagination plays an important role in the propagation of legal fictions as the basis for enduring legal judgments. Imagination is no less important for understanding how feminist legal theorists might redress the stark reality of women's exclusion from the bastions of legal power, no less than for considering how women might transform the law and legal processes. The emergence of feminist judgment writing as feminist method and critique is yet another act of imagination supporting this transformation. This article examines the imagined parameters of the spousal immunity for rape at common law imagined in PGA v The Queen (2012) 245 CLR 355, and those imagined in the feminist judgment crafted in response to it. The article explores the ways in which legal fictions are deployed in these judgments to construct both real and imagined understandings of the intersections of law and marital rape. By holding a mirror to the real and the imagined in this specific case, the article critically interrogates imagination and judgment as feminist method with a view to assessing their methodological importance for considering questions of fundamental concern to feminist legal theory.

More Women - But Which Women? A Reply to Stephanie Hennette Vauchez

This article responds to a thoughtful intervention by Stéphanie Hennette Vauchez documenting the selection process for women seeking judicial appointment to the European Court of Human Rights. Written in the context of the author’s experience as candidate for appointment to the Court, the analysis concentrates on the gendered dimensions of international institutional cultures, habits and practices that frame selection to judicial office as much as any formally applicable rules. I explore the ways in which ostensible access to international judicial bodies conceals the manifold ways in which Courts are coded masculine, and how female candidacy requires careful deliberation on performance, presentation and identity. Drawing on ‘new institutionalism’ theory, I underscore that female presence alone rarely undoes embedded institutional practices. Rather, transforming institutional practices and values must parallel female presence, thereby redefining the institution and the forms of power it exercises. The article concludes by reflecting on the importance of feminist judging, and argues that it is precisely the transformative political and legal changes sought by self-defined feminists that may stand the best chance of undoing the structures, habits and practices that continue to exclude women from being appointed and from engaging on terms of full equality when they arrive.

Learning Legal Reasoning While Rejecting the Oxymoronic Status of Feminist Judicial Rationalities: A View from the Law Classroom

One misconception accompanying the idea of a feminist judgment is that feminist judgment is inherently at odds with the putative neutrality of the ‘judge’ as a ‘neutral’ adjudicator. Many lawyers, scholars and law students tend to assume that when deliberating as a judge, feminism(s) simply has/have no rightful or rational place, relevance or bearing upon the process or the outcome and that such a ‘non-neutral’ view will necessarily deviate from the standard canons of judicial reasoning by embodying an unacceptable bias. Introducing students to the 'grammar' of reasoning in an undergraduate course dedicated to both general critical reasoning and legal reasoning, however, presented an ideal opportunity for students to encounter in greater intimacy the interpretive openness of law and the indeterminacies that argument alone can never ultimately resolve without recourse to deeper positional commitments. By stepping into the role of judge, having studied the techniques, inherent malleability and limitations of legal argument, students could explore for themselves the range of argumentatively defensible interpretations and outcomes possible in any given legal case. In the process, the students could appreciate not only the open textured nature of judgment and legal reasoning more richly, but also see the ‘rationality’ of feminist judgment as a fully plausible alternative to non-feminist ‘rationality’ and judgment.

Gender and Judging

Introduction: Gender and Judging: Overview and Synthesis Ulrike Schultz and Gisela Shaw PART 1: PIONEERS AND EMINENT WOMEN JUDGES 1.1. Becoming the First Women Judges in Ontario: Women Lawyers, Gender and the Politics of Judicial Appointment Mary Jane Mossman 1.2. Profiles in Leadership: Eminent Women Judges in the United States Elaine Martin 1.3. The Entry and Integration of Women into Judicial Positions in Israel Eyal Katvan 1.4. First Female Judges in the Weimar Republic in Germany: Reflections on Difference Marion Rowekamp PART 2: WOMEN JUDGES' WORK AND CAREERS 2.1. Feminisation of the French 'Magistrature': Gender and Judging in a Feminised Context Anne Boigeol 2.2. 'I was noticed and I was asked ...' Women's Careers in the Judiciary. Results of an empirical study for the Ministry of Justice in Northrhine-Westfalia, Germany Ulrike Schultz 2.3. Women Judges and Magistrates in Kenya: Challenges, Opportunities and Contributions Winifred Kamau 2.4. The Impact of Women on the Administration of Justice in Syria and the Judicial Selection Process Monique C Cardinal 2.5. Skills for Judicial Work: Comparing Women Judges and Women Magistrates Kathy Mack and Sharyn Roach Anleu 2.6. Professional Stress, Discrimination and Coping Strategies: Similarities and Differences between Female and Male Judges in Switzerland Revital Ludewig and Juan LaLlave PART 3: GENDER PERSPECTIVES IN JUDGING 3.1. Gendered Experiences of a Judge in Germany Ruth Herz 3.2. Women Judges in the Netherlands Bregje Dijksterhuis 3.3. Gender and Judging in Traditional and Modern Societies: A Comparison of Two Case Studies (Ivory Coast and Italy) Maria Rita Bartolomei 3.4. Gender Arguments and Gender Perspective in Legal Judgments in Argentina Andrea L Gastron, M Angela Amante and Ruben Rodriguez 3.5. Do Women on South Africa's Courts Make a Difference? Ruth B Cowan PART 4: GENDERED CONSTRUCTION OF JUDGES 4.1. 'May it Please the Court'. Forming Sexualities as Judicial Virtues in Judicial Swearing-in Ceremonies Leslie J Moran 4.2. Let History Judge? Gender, Race, Class and Performative Identity: A Study of Women Judges in England and Wales Hilary Sommerlad PART 5: FEMINIST JUDGES AND FEMINIST ADJUDICATION 5.1. Must Feminist Judges Self-identify as Feminists? Beverley Baines 5.2. Justice Marcia Neave: Case Study of a Feminist Judge Rosemary Hunter 5.3. What's in a Label? Argentine Judges' Reluctance to Call Themselves Feminists Beatriz Kohen 5.4. A Feminist Adjudication Process: Is There Such a Thing? Reg Graycar PART 6: QUOTAS AND DIVERSITY 6.1. Which Judicial Selection Systems Generate the most Women Judges? Lessons from the United States Sally J Kenney 6.2. Gender Quotas for the Judiciary in England and Wales Kate Malleson 6.3. Rethinking Judicial Diversity Erika Rackley PART 7: GENDER AND JUDICIAL EDUCATION 7.1. Gender and Judicial Education in India Ann Stewart 7.2. Gender and Judicial Education in Japan Kayo Minamino 7.3. Engendering the Judiciary-Lessons from the Philippines Atsuko Miwa 7.4. Gender Training for the Judiciary in Cambodia Keiko Sawa 7.5. Do German Judges Need Gender Education? Ulrike Schultz

Learning legal reasoning while rejecting the oxymoronic status of feminist judicial rationalities: a view from the law classroom

One misconception accompanying the idea of a feminist judgment is that feminist judgment is inherently at odds with the putative neutrality of the “judge” as a “neutral” adjudicator. Many lawyers, scholars and law students tend to assume that when deliberating as a judge, feminism(s) simply has/have no rightful or rational place, relevance or bearing upon the process or the outcome and that such a “non-neutral” view will necessarily deviate from the standard canons of judicial reasoning by embodying an unacceptable bias. Introducing students to the “grammar” of reasoning in an undergraduate course dedicated to both general critical reasoning and legal reasoning, however, presented an ideal opportunity for students to encounter in greater intimacy the interpretive openness of law and the indeterminacies that argument alone can never ultimately resolve without recourse to deeper positional commitments. By stepping into the role of judge, having studied the techniques, inherent malleability and limitations of legal argument, students could explore for themselves the range of argumentatively defensible interpretations and outcomes possible in any given legal case. In the process, the students could appreciate not only the open textured nature of judgment and legal reasoning more richly, but also see the “rationality” of feminist judgment as a fully plausible alternative to non-feminist “rationality” and judgment.

Feminist judging and legal theory

The Feminist Judgments Project involved the writing of alternative feminist judgments in significant legal cases. This article describes how the project was used to introduce students in a legal philosophy module to the ideas sitting behind the project, i.e. that there could be a distinctively feminist approach to judgment writing and that such an approach could be legitimate. One of the aims of the module is to explore critical accounts of the law. Briefly outlining the content of the module, we then focus on two particular facets of this content: the role of judgments in the module, and the issue of where feminist judging sits within this. We then go on to consider a particular activity we have developed for use in the class, which involves students seeking to identify the gender of the judges involved, and the distinctions (if any) between judgments. Finally we reflect on how the students have used this activity within their own summatively assessed work for the module. As we proceed, we refer to our experience of bringing the Feminist Judgments Project into our work, and the extent to which we think it has been successful.

Must Feminist Judges Self-Identify as Feminist?

Feminist legal scholars want judges to self-identify as feminist. Rosemary Hunter offers a compelling argument about the significance of self-identification as the marker of a feminist judge. However, few judges are willing to self-identify as feminists. Feminist adjudication offers an alternative theory. It serves three functions not met by feminist self-identification. First, it distinguishes the professional culture of feminist judges from that of feminist legal scholars, a distinction borne out in a study comparing the use of the 'f' word on the bench and in the academy. Second, it positions feminist judges to intervene in the contemporary feminist legal theory debate between dominance feminists who self-identify and postmodern feminists who disavow their approach. Third, it invites feminist legal scholars to recognize the power dimension inherent in their relationship with the feminist judges whom they study. I conclude it is premature for feminist legal scholars to rely only on the theory of feminist self-identification to credential feminist judges.