Feminist Legal Scholars Research Articles

Remembering Favourite Feminist Legal Scholarship

The authors, a collective of feminist legal scholars from Carleton University and the University of Ottawa, reflect on which works have been most influential to their scholarship. The article describes over 60 influential feminist works and mentions the contributions they made to the field. Many of the works consider the intersectional experience of lesbians, racialized women, and Aboriginal women and their struggle for legal empowerment. The article acclaims works that illuminate the dynamics of violence against women. Individual periodicals, scholars and activists instrumental to the feminist movements are honoured. The article praises feminist critiques of jurisprudence and contributions to scholarship and activism for legal equality and protection from discrimination. The article commends works that confront classism and colonialism. The article concludes by paying tribute to the Canadian Journal of Women and the Law, a publication that has enabled many inspiring feminist works to become part of the academic landscape.

What Work of Feminist Legal Scholarship Over the Past Twenty Years Has Been Influential or Important to You, and Why?

The call for paragraphs generated many different kinds of responses. It was atreat reading the different approaches and having an occasion to listen in asothers reflected on the question. In their own voices, here are a variety of theresponses.Parmi toute la recherche fe´ministe en droit produite au cours des dernie`resvingt anne´es, quel texte a e´te´ le plus important pour vous ou encore, lequel vousa le plus influence´, et pourquoi? L’invitation a` re´diger des paragraphes enre´ponse a` cette question a ge´ne´re´ une grande diversite´ de textes. Ce fut un re´elplaisir de lire les diffe´rents choix et d’avoir l’occasion d’eˆtre a` l’e´coute alors qued’autres re´fle´chissaient sur la question pose´e. Voici un e´ventail de ces re´ponses,re´dige´es chacune dans sa propre voix.I would have to say anything written by Ngaire Naffine, CarolSmart, and Laureen Snider, as their works are provocative, risky,and guaranteed to push your thinking about women, feminism, andthe law onto a whole new terrain.Elizabeth ComackSociology, University of Manitoba‘‘Oh well,’’ said Mrs. Hale’s husband, with good natured superiority,‘‘women are used to worrying over trifles.’’—From Susan Glaspell’s A Jury of Her Peers

La défense par la culture en droit américain

The Cultural Defence in American Criminal Law Feminist legal scholars and political theorists have criticized the use of cultural evidence by immigrant defendants in criminal cases on the grounds that such use can deny equal protection of the laws to immigrant women, but they have neglected a distinct and potentially greater problem: that mainstream legal doctrines which immigrants seek to use are themselves formulated and applied in ways that support gender inequality. Immigrants’ claims of “cultural defence” for actions that harm women seem to be most successful when they resonate with patriarchal norms in the wider society. While the defence in the “marriage by capture” and “wife-murder” cases emphasized cultural differences between immigrants and mainstream Americans, there is a striking congruence in the norms of majority and minority cultures regarding the realm of intimate relations between the sexes: that “no” doesn’t mean no, and that a man’s violent retaliation against his female partner’s infidelity is a “reasonable” response. In these cases, minority practices have found support from certain illiberal mainstream norms expressed in legal doctrine and practice. Thus, if we wish to pursue both greater equality for women and greater equality for cultural minorities, we cannot simply embrace or reject cultural defences; rather, we need to re-evaluate mainstream legal defences alongside minority practices – not only to guard against cross-cultural hypocrisy but to pursue equal justice for all.

Judging the Best Interests of the Child: Judges' Accounts of the Tender Years Doctrine

With dramatic changes in family life over the last several decades, child custody law has shifted from a maternal preference to a more egalitarian standard, the best interests of the child. Despite this change in the law, scholars have debated whether gender continues to play a role in the resolution of custody disputes. Drawing on feminist legal scholarship and sociolegal research on judges, I assess the current debates over gender and custody by examining the accounts of judges who frequently adjudicate custody cases. I conduct in-depth, face-to-face interviews with twenty-five trial court judges in Indiana and investigate judges' accounts about whether they continue to use the tender years doctrine in custody disputes, even though the custody statute is explicitly gender-neutral. Then, I assess several competing explanations of the variation across judges' accounts, including the judges' gender role attitudes, gender, age, and political party affiliation. In exploratory analyses, I also examine the contested custody rulings of a subset of nine judges to assess whether judges' accounts are congruent with their actual custody decisions. I discuss the implications of these findings in light of feminist legal scholarship as well as empirical research on child custody adjudication.

Neoliberal Melancholia: The Case of Feminist Legal Scholarship

(2004). Neoliberal Melancholia: The Case of Feminist Legal Scholarship. Australian Feminist Law Journal: Vol. 20, No. 1, pp. 7-22.

A Defining Moment: A Feminist Perspective On The Law of Sexual Harassment in the Workplace in the Light of the Equal Treatment Amendment Directive

This article considers, from a feminist perspective, the introduction of the European Equal Treatment Amendment Directive (E.T.A.D.) and its impact on the law of sexual harassment in the United Kingdom. Since feminists identified sexual harassment as a problem for women in the 1970s, feminist legal scholars have focused their attention on the law as a means of redressing it. Bringing claims in the U.K. has been difficult because of the absence of a definition of sexual harassment and reliance in the Sex Discrimination Act 1975 on a comparator approach. These problems are illustrated by the recent House of Lords decision in Pearce v. Governing Body of Mayfield Secondary School(2003). The failure of the House of Lords in Pearce to understand sexual harassment as an issue of substantive equality for women makes the introduction of the European law all the more the pressing. The author discusses the implications of the changes embodied in the E.T.A.D. in the light of feminist theory. She argues that the changes envisaged constitute welcome developments which will make it easier to remedy workplace sexual harassment. However, it is also likely that problems will remain for women in establishing sexual harassment claims, particularly if concepts of reasonableness and unwelcome behaviour continue to form part of the legal definition.

Battered woman syndrome testimony in Canada: its development and lingering issues.

This article examines the status of battered woman syndrome (BWS) testimony in Canadian courts and assesses the impact of the leading decision, Regina (R.) v. Lavallee. Acknowledging the test of reasonableness in criminal trials was constructed on a male model, the Supreme Court in Lavallee corrected the gendered interpretation of women in abusive relationships by admitting the BWS evidence. Feminist legal scholars questioned whether Lavallee had succeeded in dispelling the stereotypes around battered women. These concerns were partially addressed in R. v. Malott, but some tough issues remain: applying the reasonableness test to women of color and the narrow base of BWS evidence. Some directions are discussed: discarding BWS testimony, framing a redefined and expanded BWS testimony, introducing a new defense based on self-preservation, and adopting an alternative interpretative frame such as "coercive control." The strengthening of BWS testimony would call for the judges' referencing of latest empirical research on battered women.

Feminist Legal Scholarship: Charting Topics and Authors, 1978-2002

In their call for papers, the organizers of this symposium posed several questions, including: Are feminist law journals a victim of their own success? Have they outlived their usefulness? and is the state of feminist legal scholarship today? What constitutes feminist scholarship? As a new member of the legal academy, my answers to their questions depend on answers to two more basic questions: What has been published in feminist law journals? And, how do those articles relate to feminist articles published in non-specialty, or flagship, law journals? After searching the legal literature and finding no easy answers to my questions, I decided to do the work myself. The following essay describes what I found and proposes some tentative answers to the symposium organizers' questions. I. METHODOLOGY To develop a sense of what feminist scholarship has been published in feminist law journals and non-feminist law journals, I collected data about two sets of law journal articles that are arguably feminist in nature. First, I assumed that all articles published in w omen's law journals were feminist. Therefore, I looked at virtually every article punished in the eighteen women's law journals that have come into existence since Harvard began to publish the first academic women's law journal in 1978, (1) as set forth in Chart below. The only articles published in these journals that I excluded from my analysis were book reviews, case comments, and pieces written by students currently attending the school publishing the journal. (2) Through this method, I collected information about 1,448 feminist articles, including information about the subject matter and authorship of the articles. Second, for the same time period, 1978 to 2002, I looked at all feminist articles published in seven of the top flagship law journals: California Law Review, Columbia Law Review, Harvard Law Review, Michigan Law Review, Stanford Law Review, University of Chicago Law Review, and Yale Law Journal. (3) I adopted an expansive definition of feminism and included in this data set all articles that explicitly considered women or gender; I excluded articles that discussed an area of the law that could have concerned women--such as family law or employment discrimination--but which did not specifically discuss those issues as they related to women or gender. Using this method, I collected information about 189 feminist articles. II. FINDINGS These two sets of feminist articles by no means provide a comprehensive overview of all the feminist legal scholarship that has been published. (4) However, the data sets do reveal much about the topics considered by feminists in the legal academy over the past twenty-five years, and about who has been participating in the debates. A. Subject Matter After collecting the two pools of articles described above, I looked at the primary topics covered by each article. Although the topics were diverse and nuanced, there eventually appeared to be a critical mass of articles discussing certain general topics. (5) I focused on those general topics found in at least five percent of the articles in both the women's law journal and flagship article pools, first during the entire twenty-five-year period and second, during four subsets of that period: 1978 to 1987; 1988 to 1992; 1993 to 1997; and 1998 to 2002. Throughout the entire twenty-five-year period, five topics were discussed in at least five percent of the women's law journal and flagship articles: (1) employment, in which I included all articles discussing workplace issues affecting women, including sexual harassment; (2) family, in which I included all articles concerning adult intimate relationships, child rearing, and legal formations of the family, such as adoption; (3) feminist legal theory in general; (4) reproduction, in which I included all articles discussing child bearing (as opposed to child rearing) issues, including abortion; and (5) violence against women, in which I included all articles concerning domestic violence, rape, and other forms of abuse. …

Looking in the Honest Mirror of Privilege: "Polite White" Reflections

When I look in the honest mirror of feminist legal scholarship I see reflected back at me a failure by those of us white feminists to seriously address the substantive critiques authored by women of color in the last twenty years. It is time to develop an agenda that does more than cite to the work of these important critiques. It is time to follow their lead and work to transform our own thinking to confront personal privilege that may shape our approaches to scholarship. At the final panel of the Conference, Why a Feminist Law Journal?, which is the subject of this symposium, one of the professors present made a statement that went unaddressed. The bold, honest observation made by Professor Taunya Lovell Banks continues to concern me, particularly because no one really responded. She referred to the many Black, Latina, and Asian women who have pointed out that legal feminist scholars have not broadened the inquiry to challenge the essentialist assumptions inherent in their focus. Professor Banks added that nothing I have heard here today makes me feel any differently about this failure. I prepared myself for the intense discussion that would follow. As someone who works to uncover my own privilege I waited a moment to listen to how others would respond to her very frank comment. I appreciated her honesty and wanted to engage in examining our own actions to figure out what should be done to further the dialogue about this problem. I wanted to figure out how to make those concerns a part of my responsibility as a critical race feminist. I am learning to take my part in admitting the limits of my own evolving perspective as a critical feminist legal scholar. (1) Any articulation of exclusion or omission ought to be seriously addressed in an environment where all participants help to shape the nature of the dialogue. As most of the feminist scholars present appeared to identify a commitment to support critical race scholarship, I expected that we would engage in a fruitful self-examination of her point, or at least act as if we heard what she said. Instead, silence loomed large in the room for a telling moment and then the moderator called on the next person to ask a question of the panel. We moved on, congratulating ourselves for a good conference, and busied ourselves with receptions and goodbyes that did not address her concerns. Professor Banks identified the fact that the Emperor was not wearing any clothes and we chose to ignore this critical observation. (2) In this age when opponents of affirmative action are raising the mantle of color-blind equality, where the assumptions of privilege remain hidden under that mantle, how can we even consider ourselves polite if we refuse to help uncover the hidden assumptions we perpetuate that blind us to the voices of women of color or that blind us to our own role as whites? Our willful blindness helps shield what may be under the Emperor's make-believe mantle. We do specialize, as feminists all, in trying to name hidden assumptions, do we not? If we cannot address this failure to accept responsibility for engaging in the dialogue on these tough issues that keep us separated or isolated or silenced, then we are not doing much of value. One starts with one's own house to examine whether the foundations are solid. The critique based on essentialism is a familiar one. It is wonderfully diverse and challenging. (3) The observation articulated by Professor Banks was not new. She made the room of feminists acknowledge, if only by our silence, as we joined together as feminist law students, law professors, attorneys, and staff, that we had not truly engaged in the real dialogue and we continued to make assumptions that reflected that same old essentialist box. Professor Banks made her comments in the place that should be the most receptive to inclusiveness and openness. Her position as a valuable member of this community meant that we needed to actively hear her concern and engage in the kind of dialogue that took her comment to heart. …

Reassessing Portia: The Iconic Potential ofShakespeare's Woman Lawyer

This paper considers the adoption ofPortia, the heroine of The Merchant ofVenice, by feminist legal scholars as ametaphor for the woman lawyer. It suggests thatPortia has both captured and is captured by thefeminist legal scholar's imagination, becomingat once an idol, myth and icon. She is to somethe personification of the woman lawyer'sperceived difference, a mouthpiece for mercyand `the different voice' and to others, a shamor myth, her idolised reputation sullied, her`difference' rejected. Yet ultimately thisconstant and simultaneous idolisation andvilification of Portia threatens not only tosilence and constrain conversations about thewoman lawyer, but also to eclipse her promiseand potential. Thus in the final section of thepaper, Portia is established as an icon. Assuch her story, understood as a myth or fairytale, is seen to reveal previously unimaginedpossibilities for change, as an iconicunderstanding of Portia becomes a windowthrough which feminist legal scholars can lookonto alternative understandings of lawyeringand adjudication.

In praise of legal feminism

This paper reflects on the achievements of feminism within the legal academy. Rather than offer an encyclopaedic account of feminist legal scholarship, it seeks instead to define, in broad terms, the aims, the spirit and the methods of legal feminism, identifying the commonalities among feminist scholars. It suggests that it is the critical study of law as ‘a form of life’, to borrow from Wittgenstein, which perhaps best characterises the shared endeavour of legal feminists. The paper identifies the major intellectual and political difficulties encountered, and also engendered, by feminists in the course of their work, and it assesses the impact of feminism on mainstream jurisprudence.

Teaching Prostitution Seriously

This article examines what students learn about prostitution in criminal law courses by reviewing the treatment of prostitution in three criminal law casebooks currently in use in law schools and the teacher’s manuals that accompany them. Criminal law casebooks have undergone change as a result of feminist efforts to reform the criminal justice system. Although feminist legal theory has influenced the treatment of rape and domestic violence in the casebooks, the stereotypical treatment of prostitution remains virtually unchanged. The purpose of this article is to build on earlier feminist efforts and encourage criminal law teachers and casebook authors to recognize the gendered implications of the treatment of prostitution, to take the law of prostitution seriously, and to consider how prostitution implicates a broad range of criminal justice issues. During the last thirty years, feminist legal scholarship and activism have succeeded in making the criminal justice system more responsive to the issue of violence against women. In the area of domestic violence, states have

The Incredible Woman: Power and Sexual Politics by Jocelynne A Scutt

This article is a book review of Jocelynne A Scutt The Incredible Woman: Power and Sexual Politics (Artemis Publishing, Melbourne, 1997) (vol 1, 336 + xiv pages, $AUS34.95; vol 2, 354 + xvii pages, $AUS34.95). The book is an anthology of scholarship that acts as a catalogue of the wrong standards that the law has applied to women's performances and women's experiences. Petersson stresses the importance of this book for feminist legal scholarship as it increases the volume of such works, increasing the possibility of political change. Scutt's book is praised for being an exemplary voice for raising awareness in this area by making the message clear and accessible.

Reassessing the Feminist Theoretical Project in Law

This article seeks to address the current state of theoretical debate within feminist legal studies in the United Kingdom and beyond. It is part map, part critique of dominant theoretical trends – an attempt to identify and explore a range of questions about feminist scholarly engagement in law, including the relationship between academic feminism and political activism, the distinction (if any) between ‘feminist’ analyses and broader engagements with law and gender, and the normative underpinnings of feminist legal scholarship. The author makes no pretence to neutrality on these issues, questioning the perceived ‘drift’ between political and academic feminism, and arguing strongly for the recognition and realization of feminism's normative and transformative aspirations. Similarly, she challenges the emergence of an ‘anti‐essentialist’ norm in feminist discourse, and reaffirms the value of ‘women‐centred’ feminist approaches. Finally, this article is also a personal venture, a ‘stock‐taking’ exercise which seeks to interrogate the author's own understanding of what feminist legal work entails.

Feminism and International Law: Theory, Methodology, and Substantive Reform

Until recently, international law went unexamined by feminist legal scholars. 1 While feminists have applied manifold theories of jurisprudence to the formal and informal legal systems of the United States and many other countries from New Guinea to Saudi Arabia, rarely have they directed their attention to the procedures and substance of the international legal system. Among those authors who have studied the subject, most tend to concentrate solely on women's rights as an aspect of international human rights law, although a few, such as Judith Gardam and Robin Teske, have ventured into international humanitarian law and the law governing the conduct of armed conflict (ius in bello). Yet the broadest treatment of the subject remains the first. In 1991, Hilary Charlesworth, Christine Chinkin, and Shelley Wright jointly attempted a general feminist critique of international law in The American Journal of International Law. 2 Their purpose was to [End Page 659] show that "the structures of international lawmaking and the content of the rules of international law privilege men; if women's interests are acknowledged at all, they are marginalized. International law is a thoroughly gendered system." 3 Their argument posits that international law is pervasively "gendered" or, more specifically, "male gendered," conceptually, procedurally, and substantively--assertions that have been repeated by feminists many times since.

Heightened Sensitivity to Conflict on the Part of Female Criminal Defenders

A popular perception among some criminal attorneys is that female public defenders are more stressed than are males by the type of occupational conflict that is central to the adversarial role. One might also be tempted to make such an inference upon examination of literature on sex-based differences in the areas of aggression, competitiveness, and role expectations, and after review of the works of relational feminists and some feminist legal scholars. However, this paper presents results of regression analyses which suggest that though some gender-based sensitivity to criminal courthouse conflict appears to exist, evidence that such sensitivity is of any substantive magnitude is lacking. Hence, concerns that conflict-based advocacy is a “male way” of practicing criminal law or that greater risks confront female defenders than male defenders in the areas of health and career satisfaction were not supported by these data.

The Ethic of Care, Female Subjectivity and Feminist Legal Scholarship

The object of this essay is to explore the central role played by the ‘ethic of care’ in debates within and beyond feminist legal theory. The author claims that the ethic of care has attracted feminist legal scholars in particular, as a means of resolving the theoretical, political and strategic difficulties to which the perceived ‘crisis of subjectivity’ in feminist theory has given rise. She argues that feminist legal scholars are peculiarly placed in relation to this crisis because of their reliance on the social ‘woman’ whose interests are the predominant concern of feminist legal engagement. With the problematisation of subjectivity, the object of feminist legal attention disappears and it is in attempts to deflect the negative political consequences of this that the ethic of care has been invoked, the author argues, unsuccessfully. The essay concludes with suggestions as to how the feminist project in law might proceed in the wake of the crisis of subjectivity and the failure of the ethic of care to resolve it.

Feminist Jurisprudence and Political Vision

In The Once and Future King, Merlin lives backwards in time and, thus, having experienced the future, is able to predict the future. If feminist legal scholars and activists had the hindsight and foresight of a wizard or Patricia Williams's potent black witchcraft (1992, 165),1 they would be able to fully comprehend the past and prepare for the politics of the future with certainty. At a moment when feminist politics of law seems fragmented and uncertain, Merlin's perspective and powers are appealing. But knowing the

The Different Voice: Japanese Norms of Consensus and "Cultural" Feminism

THE DIFFERENT VOICE: JAPANESE NORMS OF CONSENSUS AND CULTURAL FEMINISM Martha Jean Bakert Feminist legal scholarship is a new field, having emerged within the last generation as more women have become lawyers, law professors and legal scholars. As the field developed, women writers began to say no to traditional (male) legal theory and search for a perspective and a voice that was uniquely feminine, if not feminist. Scholars have tried to articulate the ways in which women have been left out of the law. They have exposed the neutral generic human as male and have tried to define ways that women see things differently and that human/female is different than human/male, that the reasonable man is not the same as the reasonable person or the reasonable woman. Cultural feminists adopted the work of psychologist Carol Gil- ligan' to provide them with a context and a justification for a legal theory based on difference. If cultural feminism recognizes a different voice, 2 as iden- tified by Carol Gilligan, 3 and if it were heard it would be better for all of us, and if this is the voice that is universally heard in Japan, then how do we explain that things are not better for wo- men in Japan? Japan's general population seems to live with a t Martha Jean Baker is working on an LL.M. in Human Rights at University College London (University of London). This paper began life under the sympa- thetic guidance of Gretchen Van Damm at Chicago-Kent College of Law but could not have been completed without the thoughtful criticism of Anita Bernstein who read many versions of this paper and suggested articles to read, reorganization for increased clarity, general editing and other help above and beyond the call of duty. This paper will be read at the conference of the International Federation for Re- search in Women's History, Women and Human Rights, Social Justice and Citizen- ship, in Melbourne, Australia in June/July 1998. 1. See CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY (2nd ed. 1993). 2. See, e.g., Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1 (1988), reprinted in DALE A. NANCE, LAW AND JUSTICE 279 (1994) (hereinafter Ju- risprudence and Gender). 3. GILLIGAN, supra note 1. AND WOMEN'S DEVELOPMENT

'Ideology' after 'Discourse': A Reconceptualization for Feminist Analyses of Law

Of the many challenges faced by feminist legal scholarship in recent years, the post-modernist challenge to the use of overarching theoretical frameworks to 'explain' women's position under law has been characterized as one of the most 'destabilizing'.2 Theories derived from the analytical concept, 'ideology', and advocating 'consciousness-raising' as the means of redressing women's inequality under law have been the subject of most frequent criticism due (in part) to their reliance upon unsustainable essentialist notions of truth and femininity. Yet, increasingly, 'discourse', the postmodern successor to ideology, has come under attack from feminists concerned with maintaining a reformist stance towards law. In response to postmodern critiques of ideology and to the more recent claim that, in focusing exclusively upon discursive deconstruction, discourse theory is unable to do more than challenge law's treatment of women at an abstract theoretical level, I argue a case for retaining aspects of both concepts. I explore a reconceptualization of ideology which, borrowing insights from discourse theory, recognizes the strategic necessity of coupling feminist analyses of dominant discursive constructions of femininity with efforts to disrupt and resist the material effects of their reproduction in law.