Feminist Lawyers Research Articles

Gender politics in israel: the case of affirmative action for women directors

This article tells the story of how Israeli women succeeded in obtaining affirmative action to give them access to state-owned company boards. The apparent paradox of the inclusion of affirmative action in a law intended to eliminate “irrelevant” considerations in the appointment of directors and the irony that affirmative action was legislated for the most privileged minority—professional women—are explained in relation to the specificities of Israel's “incorporation regime”: its republican-to-citizenship discourse that legitimated a hierarchy of entitlements among women on the basis of nationality and ethnicity and the transition to a liberal citizenship discourse with its emphasis on individual merit and equal opportunity. The article traces the political and historic context within which the struggle for affirmative action took place, focusing on the orchestration and strategy supplied by the emergent professional class of women, particularly feminist lawyers and members of women's organizations. Ultimately, the way the policy was framed and construed—as recognition of women's potential contributions to company boards—kept women locked in a gendered social order.

Access to Justice after Universalism: Introduction

The access to justice debate has traditionally been founded on key notions of legality and legitimacy, in particular, the rule of law and equality. The idea of equal application of law has a rich pedigree and equal access to justice has been a clarion call for progressive lawyers and legal pressure groups alike. As Cappelletti and Garth observe, ‘the possession of rights is meaningless without mechanisms for their effective vindication.’ Yet, in spite of this, the ‘equal access for all’ agenda has come under increasing strain. As Paterson and Goriely have shown, the tensions within the equality of access agenda are partly conceptual. There are differences between those who advocate minimal rights to ensure some level of access and those who claim equality should be absolute. There are also questions over the utility of rights of access to justice, centred upon the ability of lawyers and legal processes to deliver substantial benefits to the poor. Inequalities are economic, social, and political and the capacity of legal aid programmes to redress them is limited. As Abel puts it, legal aid is one of the ‘limited redistributions [that] also legitimates a system that consistently betrays its promises.’ These scholarly tensions and concerns have been heavily underlined by a direct challenge to the level of state spending on legal and related advice services across Western societies. This has led to a growing interest in measures which enable greater control over expenditure, but also a wider ideological challenge to the desirability of such funding, and the utility of

Taking Account of Male Dominance in Rape Law

American legal scholar MacKinnon held that using consent as the legal criterion to draw the line between rape and intercourse would evade the issue of male dominance in heterosexual relations. Feminist lawyers in the Netherlands and England and Wales translated the insight that rape has to do with inequality between the sexes in alternative definitions of rape. They also struggled to get these alternative definitions incorporated in law. However, in the Netherlands as well as in England and Wales, feminist proposals to broaden the concept of coercion or non-consent to include submission met with serious obstacles from within the legal system. This article describes the process the feminist proposals to redefine coercion or non-consent in rape law went through in the Netherlands and in England and Wales. It tries to answer the following question: To what extent can the obstacles in this process of forming a broad definition of coercion be attributed to what MacKinnon called the inherent fallocentrism of law?

Three Cultures from the "Inside"

Three Cultures from the "Inside"

Who Is the Guilty Party? Rights, Motherhood, and the Problem of Prenatal Drug Exposure

Laura Gomez, Misconceiving Mothers: Legislators, Prosecutors, and the Politics of Prenatal Drug Exposure. Philadelphia: Temple University Press, 1997. Pp. x+256. $59.95 cloth; $19.95 paper. Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty. New York: Pantheon Books, 1997. Pp. x+384. $26.00 cloth; $14.00 paper. In 1987, California prosecutors used the state's child support statute to charge Pamela Rae Stewart with criminal neglect for using drugs while she was pregnant. With this prosecution Stewart became the first woman in the United States charged with the crime of exposing her fetus to drugs (Gomez 1997; Roberts 1997). In 1989, Florida prosecutors adapted state drug trafficking laws to convict Jennifer Johnson for delivering cocaine to a minor through the umbilical cord (Daniels 1993). And in 1992, South Carolina prosecutors used child abuse protection laws to convict Caroline Whitner with endangering the life of her unborn child by smoking crack cocaine during her pregnancy (Roberts 1997). While these three cases captured national headlines, in the past decade prosecutors have charged more than 200 women with crimes for prenatal drug exposure (Chavkin et al. 1998). Their justification: making prenatal drug exposure a crime would ultimately protect the health and well-being of infants. But should prenatal drug exposure be treated as a criminal offense? Does prosecution really protect the health and welfare of newborns? Should prosecutorial efforts to criminalize prenatal drug exposure be supported by legislative changes? Should the American public support the efforts of legislators and prosecutors to do just that?1 Feminist lawyers, scholars, and activists have answered these questions with resounding no's. Expressing great concern about the popular support for punishment and the legislative and prosecutorial trend toward criminalizing prenatal drug exposure, they argue that criminalization is both an unconstitutional and ineffective response to a very pressing social problem. Criminalization of prenatal drug exposure, opponents suggest, violates women's rights to liberty, privacy, and equality, and fails to meet the standards set by the criminal justice system. These violations are based, in part, on the fact that punitive approaches fail to reduce both the incidence and the harmful effects of drug use during pregnancy (see, e.g., Johnsen 1986; 1992; Gallagher 1987; Harvard Law Rev. 1990; McGinnis 1990). Criminalization and prosecution may, in fact, do more harm than by frightening women away from prenatal care and placing them in jail during their pregnancies. What is needed instead, opponents argue, are alternative interventions such as drug treatment programs and increased access to prenatal care. These interventions, they suggest, are not only more effective at reducing the incidence and effects of prenatal drug exposure but also more respectful of women's rights and cognizant of the healthcare needs of women and children. Despite these powerful arguments, punitive legislation and prosecutions continue. Feminists have concluded, therefore, that such policies are actually attempts to regulate the lives of pregnant women and subordinate women's rights and needs to those of the fetus. Undergirded by idealized notions of motherhood, what Marlee Kline (1995) calls the of motherhood,2 punitive responses to prenatal drug exposure are said to feed on the desire to place the blame for social problems on particular individuals. Prosecutors and legislators use the ideology of motherhood, which presumes that always act in selfsacrificing and caring ways toward their children, in order to distinguish good mothers from bad mothers and innocent victims from guilty parties. Through this process, prosecutors not only identify particular women as criminals, but ultimately reinforce gender hierarchy and hinder attempts to implement alternative policies and practices (see Harvard Law Rev. …

Feminist Lawyers

Feminist Lawyers

Give Them Back Their Lives: Recognizing Client Narrative in Case Theory

* Associate Professor of Law, The American University, Washington College of Law. B.A. 1978, Carleton; J.D. 1983, University of Chicago. Ed. I thank Robert Dinerstein, David Chavkin, Stephen Ellmann, and Nancy Polikoff for thoughtful responses to earlier drafts of this article, David Marin and Sara Shepard for helpful research assistance, and the participants in the Mid-Atlantic Clinical Theory and Practice Workshop and the New York Law School Clinical Theory Workshop for valuable comments. I am especially indebted to Miriam Ruttenberg for wide-ranging research support and astute feedback about the ideas in this article, Liz Seaton for incisive editing and farseeing conversations about the politics of sexual orientation and case theory, and my colleagues in the clinical program at The American University, Washington College of Law, whose insights about lawyering have shaped my work as a clinical teacher and scholar. I also thank my partner Ruth Eisenberg and my friend Michele Wolin for their generous personal support. Because all writing builds on lessons from the past, I dedicate this article to the memory of my mother, who loved unstintingly through pain and adversity, and who taught me the significance of perspective and the value of empathy. 1. See Symposium, Lawyers As Storytellers & Storytellers As Lawyers: An Interdisciplinary Symposium Exploring the Use of Storytelling in the Practice of Law, 18 VT. L. REV. 565 (1994); Symposium, Legal Storytelling, 87 MICH. L. REV. 2073 (1989); Symposium, Speeches from the Emperor's Old Prose: Reexamining the Language of Law, 77 CORNELL L. REV. 1233 (1992). 2. See, e.g., Clark D. Cunningham, A Tale of Two Clients: Thinking About Law as Language, 87 MICH. L. REV. 2459, 2463 (1989); Steven Lubet, The Trial as a Persuasive Story, 14 AM. J. TRIAL ADVOC. 77, 77 (1990); Sharon Creeden, Telling Your Client's Story to the Jury, TENN. B.J. May-June 1991, at 10, 10. 3. See, e.g., Charles R. Lawrence, III, The Word and the River: Pedagogy as Scholarship as Struggle, 65 S. CAL. L. REV. 2231, 2278 (1992); Kim Lane Scheppele, Foreword: Telling Stories, 87 MICH. L. REV. 2073, 2073 (1989). The relationship between law, storytelling, and progressive lawyering is brilliantly portrayed by Gerald L6pez, perhaps the foremost proponent of this genre, in his path-breaking work Rebellious Lawyering. See GERALD P. LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE (1992). For a thoughtful analysis of L6pez's ideas, see Anthony V. Alfieri, Practicing Community, 107 HARV. L. REV. 1747 (1994) (book review). The idea of voice and narrative is also the focus of much academic literature from other disciplines, including literature, anthropology, political science, and history. See, e.g., JAMES MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA at ix-x (1988). For a critique of the legal narrative movement, see Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807, 840-54 (1993) (arguing that objective standards should be used to evaluate narratives and that much narrative scholarship falls short of these standards).

Taking the Lawyer out of Progressive Lawyering

Taking the Lawyer out of Progressive Lawyering

The Lynching of Cleo Wright: Federal Protection of Constitutional Rights during World War II

Unlike previous 3,842 lynchings that occurred between 1889 and 1941, that of Cleo Wright in Sikeston, Missouri, early in 1942 drew United States Department of Justice directly into that area of civil rights for first time.' This unprecedented activity marked a turning point in long, unheralded struggle for racial equality that had been fought largely in courts and at times in streets since century began. It also reflected impact of both New Deal ideology and World War II circumstances, which signaled even greater federal support for civil rights enforcement during postwar era. Despite Jim Crow laws and lynchings in South and de facto segregation and riots in North, efforts by National Association for Advancement of Colored People (NAACP), liberal lawyers, and federal judges had begun to alter legality of racial discrimination long before death of Cleo Wright. Their counterattack began during Progressive Era, resurrected Civil War amendments, and won cases before United States Supreme Court of Chief Justice Edward Douglass White (1910-1921). Most notably, they succeeded in using Thirteenth and Fifteenth amendments to strike down peonage and grandfather clauses, respectively, and Fourteenth Amendment to point up rights of black citizens affected by residential segregation and separate-but-equal accommodations. Hardly dismantling the legal structure of racism, those victories held out hope and set precedent for fundamental changes that came during Great Depression. An improved and increasingly black-dominated NAACP legal staff, a law profession reconsidering its values in an era of great change, and a Supreme Court whose majority increasingly embraced judicial activism on behalf of minorities brought about a constitutional revolution in civil rights. Their endeavors-which began in early 1930s and took root in 1937 as Hugo L. Black's appointment