Activism, Lawyering, and Legal Theory
Publication Year: 2006
In the late 1970s, feminist scholars and activists joined together to build a movement aimed at bringing feminist theory and experiences to the practice and teaching of American law. Since then, the feminist jurisprudence movement has taken root, with courts and legislatures addressing matters of sex and gender inequality, and law schools employing feminist and post-feminist theory in the classroom. In this important book, Ann Scales, a founding contributor to the movement, reflects on the past, present, and future of feminist jurisprudence.
Legal Feminism situates the feminist jurisprudence movement within the larger context of Western law and philosophy, focusing first on common problem areas of legal theory and decision-making, and then explaining how feminist jurisprudence can analyze and address these issues in new ways. Throughout, Scales draws on legal disputes to show how feminist theory works in the courtroom and in other real-life arenas.
Part personal memoir, part primer, and part treatise, Legal Feminism is a de-jargonized, lively account of how feminist jurisprudence can solve traditional legal conflicts, and why it matters to anyone committed to building an equitable and progressive society.
Published by: NYU Press
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Title Page, Copyright Page
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Many people have helped in many ways with this book. Judge Robert Henry of the United States Court of Appeals for the Tenth Circuit instigated the project and encouraged me to reach out to judges. The University of Denver College of Law provided summer research support that made it possible to do this, rather than other work. Diane Burkhardt and the staff of the University of Denver College ...
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Whatever happened to legal feminism? Has it done any good? What is it or was it? It is still around? Does it have a future? Perhaps these questions could be answered in a linear way, but I am better equipped to address them inside out, from the point of view of a founding mother, so to speak. I started my career as a feminist lawyer in 1978, was a ground-floor ...
Part I Places of Stuckness: Roles, Rules, Facts, and the Liberal View of Human Nature
1 The Rule of Law
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There is no concept more central to the American experiment than the “rule of law.” We all somehow accept it as the cornerstone of the republic. The rule of law comes to us, seemingly, in mother’s milk. Given its centrality, it is interesting how little agreement there is about its meaning.1 I’ve contributed to this conventional lack of examination. For example, during the summer preceding President Nixon’s resignation in ...
2 Certainty and Doubt
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In chapter 1, I suggested that something called “justice” was at stake in our relationships to the rule of law. If you have been (or are being) well trained in law school, you are probably wondering where I come off using that word. In response, I would ask you how we acquire the habit of running from justice? A student hasn’t had to read too many opinions in law school before she realizes that the strategy for each judge is to show that his position ...
3 Intractable Questions
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In the prior chapter, I described the tension between certainty and doubt with reference to familiar legal problems. Whether lawyers like it or not, the U.S. Constitution doesn’t explain what it means in every controversy by “searches and seizures” or “cruel and unusual punishment.” The first set of words is inherently ambiguous: one cannot assert with certainty or finality either what behaviors the ...
4 The Limits of Liberalism
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So far, this book has criticized some of the conventional explanations for legal power that initially attract lawyers, judges, and students. In chapter 1, I related how institutional justifications—such as the magisterial invocation of “the rule of law”—are meaningless without commitments to the principles implied thereby. In chapter 2, I described how approaches regressing always to radical doubt need to get over themselves in order to be helpful in legal disputes. Allowing that ...
Part II Places beyond Stuckness: Feminist Notions, Controversies, and Promises
5 Feminist Legal Theory
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Everything I know about being a lawyer has been through the emergence of what came to be known as “feminist jurisprudence.” What I call “feminism” is not a way of thinking confined to persons born female. Rather, this feminism is the concrete analysis of systematic oppressions, which analysis has led to a critique of objectivity in epistemological, psychological, and social—as well as legal—terms. There is ...
6 Feminist Legal Method
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If it is true that law is a discourse about epistemology, ethics, and politics, the next project is to inform the epistemology, ethics, and politics of legal decision making. Chapter 4 explained why difficult legal projects can’t be informed by the rhetoric of liberalism. Chapter 5 described a feminist way of understanding law that takes history, suffering, and context seriously. At the end of that chapter, I spoke of the difficulty in keeping feminist insights in focus. 1 In this chapter, I would ...
7 False Consciousness
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In previous chapters, I’ve repeatedly come back to the concept of choice. It is a fundamental tenet of legal liberalism—that the individual is the only meaningful unit of social measurement and that the individual captains her own ship, makes her own bed, and is the self-determining protagonist in a number of nonmetaphorical endeavors as well. Choice is also an intractable problem in philosophy. There is no ...
8 The Future of Legal Feminism
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In the feminist law teaching business, there is an exercise all teachers and students eventually go through. It is called “How should the case have come out?” This exercise is not the usual law school class discussion about how doctrine and facts interact. This feminist exercise is about how legal disputes should come out in terms of the bigger ...
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About the Author
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Page Count: 240
Publication Year: 2006