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Applications Of Feminist Legal Theory

Mary Richard A; Becker Catharine A; Posner D. Kelly; MacKinnon Weisberg

Publication Year: 1996

Published by: Temple University Press

Title Page, Copyright, Dedication

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CONTENTS

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pp. v-x

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PREFACE

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pp. xi-xii

THIS BOOK is the second of two volumes of collected essays on feminist legal theory. The underlying theme explores the relationship between law, gender, and equality. The book applies notions and theories of equality to contexts of both sexuality (prostitution and pornography) and violence (rape and battering), while recognizing that these contexts are not analytically distinct because male violence against women pervades both. ...

Part I. SEXUALITY

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pp. 1-2

Section 1. Pornography

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Introduction

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pp. 5-27

THE ANTIPORNOGRAPHY MOVEMENT has ignited one of the most heated controversies in feminist legal theory today. Feminist scholarship about pornography dates to the 1970s.1 During that period, writers Robin Morgan, Susan Brownmiller, and Andrea Dworkin2 introduced the view that pornography represents an ideology that influences social attitudes. Robin Morgan, for example, linked pornography and rape. "Pornography is the theory ...

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Against the Male Flood: Censorship,Pornography, and Equality

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pp. 28-36

IN THE UNITED STATES, it is an $8-billion trade in sexual exploitation. It is women turned into subhumans, beaver, pussy, body parts, genitals exposed, buttocks, breasts, mouths opened and throats penetrated, covered in semen, pissed on, shitted on, hung from light fixtures, tortured, maimed, bleeding, disemboweled, killed. It is some creature called female, used. It is scissors poised at the vagina and objects stuck in it, a smile on the woman's face, ...

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Not a Moral Issue

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pp. 37-58

A CRITIQUE OF pornography 1 is to feminism what its defense is to male supremacy. Central to the institutionalization of male dominance, pornography cannot be reformed or suppressed or banned. It can only be changed. The legal doctrine of obscenity, the state's closest approximation to addressing the pornography question, has made the First Amendment into a barrier to this process. This is partly because the pornographers' ...

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Francis Biddle's Sister: Pornography,Civil Rights, and Speech

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pp. 59-79

AT THE REQUEST of the city of Minneapolis, Andrea Dworkin and I conceived and designed a local human rights ordinance in accordance with our approach to the pornography issue. We define pornography as a practice of sex discrimination, a violation of women's civil rights, the opposite of sexual equality. Its point is to hold those who profit from and benefit from that injury accountable to those who are injured. It ...

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Pornography and the First Amendment: A Reply to Professor MacKinnon

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pp. 80-86

PROFESSOR CATHARINE MAcKINNON, in a recent article ... , powerfully and perceptively developed her thesis that pornography is "[c]entral to the institutionalization of male dominance."1Pornography, she urges, is "a political practice" that "causes attitudes and behaviors of violence and discrimination which define the treatment and status of half of the population." I am not sure that I would draw the line between Eros and dehumanization ...

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Whose Right? Ronald Dworkin, Women, and Pornographers

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pp. 87-103

In "What Rights Do We Have?" Dworkin sets out some basic elements of his political theory, and the role that rights have to play in that theory.... Dworkin takes as his starting point certain "postulates of political morality" that are central, he says, to a liberal conception of equality. They can be summed up in the slogan "Government must treat those whom it governs with equal concern and respect." ...

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AMERICAN BOOKSELLERS ASS'N, INC. v. HUDNUT

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pp. 104-109

Indianapolis enacted an ordinance defining "pornography" as a practice that discriminates against women. "Pornography" is to be redressed through the administrative and judicial methods used for other discrimination. The City's definition of "pornography" is considerably different from "obscenity," which the Supreme Court has held is not protected by the First Amendment. ...

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BUTLER v. THE QUEEN

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pp. 110-117

[The defendant, Butler, owned and operated a store selling and renting hard core pornographic videos and magazines and selling sexual paraphernalia. He was convicted of8 counts of possession and sale of obscene materials (relating to eight different films) and acquitted on 242 counts. The Crown appealed the 242 acquittals; Butler appealed the convictions. The Court of Appeal for Manitoba dismissed Butler's appeal, and entered ...

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Brief Amici Curiae of Feminist Anti-Censorship Taskforce et al., in American Booksellers Association, Inc. v. Hudnut

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pp. 118-130

THE DOCUMENT that follows represents both a legal brief and a political statement. It was written for two purposes: to mobilize, in a highly visible way, a broad spectrum of feminist opposition to the enactment of laws expanding state suppression of sexually explicit material; and to place before the Court of Appeals for the Seventh Circuit a cogent legal argument for the constitutional invalidity of an Indianapolis municipal ...

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A Feminist Critique of "The"Feminist Critique of Pornography

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pp. 131-149

The ACLU's brief in Hudnut noted the adverse impact of "pornography" censorship on feminist concerns. It explained that the Dworkin-MacKinnon model law, by proscribing sexually explicit depictions of women's "subordination," outlawed not only many valuable works of art and literature in general, but also many such works that are particularly important to women and feminists: ...

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Sex, Sin, and Women's Liberation:Against Porn-Suppression

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pp. 150-161

IF PORN-SUPPRESSION reduced violence and aggression against women, thereby enhancing women's self-expression and power, it might arguably be a worthwhile effort, notwithstanding its harmful effects. Appealing as it may be to discover in pornography's vulgar phallocentrism the well-spring of male domination, porn simply is not that important. 1 Treating it as such merely deflects attention and inquiry ...

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The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory

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pp. 162-184

WOMEN'S SUBJECTIVE, hedonic lives are different from men's. The quality of our suffering is different from that of men's, as is the nature of our joy. Furthermore, and of more direct concern to feminist lawyers, the quality of pain and pleasure enjoyed or suffered by the two genders is different: women suffer more than men. The two points are related. One reason that women suffer more than men is that women often find ...

Section 2. Prostitution

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Introduction

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pp. 187-198

PROSTITUTION has been a longstanding topic of concern for feminists. Prostitution, like pornography, raises fundamental issues regarding the male right of access to women's bodies and the relationships among sexuality, gender, and equality. Historically, feminists have espoused different views about prostitution. In the eighteenth and nineteenth centuries, as Pateman explains: ...

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Male Vice and Female Virtue:Feminism and the Politics of Prostitution in Nineteenth-Century Britain

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pp. 199-207

PAST GENERATIONS of feminists attacked prostitution, pornography, white slavery, and homosexuality as manifestations of undifferentiated male lust. These campaigns were brilliant organizing drives that stimulated grass-roots organizations and mobilized women not previously brought into the political arena. The vitality of the woman's suffrage movement of the late nineteenth and early twentieth centuries cannot ...

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Charges Against Prostitution: An Attempt at a Philosophical Assessment

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pp. 208-216

[Prostitution] is held to be undesirable on the ground that it constitutes an extreme instance of the inequality between the sexes. Whoredom is regarded as displaying the male oppression of the female in its most naked form. It is contended that the relation between hooker and 'John" is one of object to subject-the prostitute being reified into a mere object, a thing for the male's pleasure, lust, and contempt. The customerman ...

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Defending Prostitution:Charges Against Ericsson

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pp. 217-221

ERICSSON'S contractarian defense of prostitution1 extends the liberal ideals of individualism, equality of opportunity, and the free market to sexual life. The real problem with prostitution, Ericsson claims, is the hypocrisy, prejudice, and punitive attitudes that surround it. Once unblinkered, we can see that prostitution is merely one service occupation among others and that, with some reforms, a morally acceptable, or ...

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Prostitution and Civil Rights

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pp. 222-236

THE GAP BETWEEN the promise of civil rights and the real lives of prostitutes is an abyss which swallows up prostituted women.1 To speak of prostitution and civil rights in one breath moves the two into one world, at once exposing and narrowing the distance between them. Women in prostitution are denied every imaginable civil right in every imaginable and unimaginable way,2 such that it makes sense to understand prostitution as consisting ...

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The Feminist Debate over Prostitution Reform: Prostitutes' Rights Groups,Radical Feminists, and the (Im)possibility of Consent

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pp. 238-249

THIS ARTICLE has two purposes. The first is to identity the theoretical basis for the divergence between prostitutes' rights groups and radical feminists over prostitution reform. I will argue that the crux of the divergence is different understandings of consent and coercion. The second purpose is to argue that despite their deep differences, both groups should support decriminalization as the only acceptable short-term option.... ...

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A Postmodern Feminist Legal Manifesto (An Unfinished Draft)

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pp. 250-260

Most feminists are committed to the position that however "natural" and common sex differences may seem, the differences between women and men are not biologically compelled; they are, rather, "socially constructed." Over the past two decades this conviction has fueled many efforts to change the ways in which law produces-or socially constructs- the differences and the hierarchies between the sexes. Feminists have reasoned, ...

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Split at the Root: Prostitution and Feminist Discourses of Law Reform

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pp. 261-272

This paper attempts to begin a response to [this] insight. The fundamental inquiry I pursue is how the relationship between "prostitutes" and "other women" is given meaning in the sexual abuse of women and girls, in the legal response to that abuse, and in feminist reform strategies. In the design of existing law, in the behavior of individual men, and in the leading strategies of feminist law reform, the relationship is cast ...

Part II: VIOLENCE

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pp. 273-274

Section 3. Battered Women

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Introduction

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pp. 276-295

FEMINIST INTEREST in wife beating dates back to the first wave of feminism.1 Nineteenth- century Victorian reformers and suffragists championed women's right to be free from physical abuse by their husbands.2 Wife beating also has longstanding roots in Anglo-American law, as explained by William Blackstone in his Commentaries. ...

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The Roots of the Battered Women's Movement: Personal and Political

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pp. 296-305

There were, however, many other influences operating upon those who would start or join the feminist movement. Published in 1963, Betty Friedan's The Feminine Mystique captured the discontent of a whole generation of middle class women, caught between aspirations for fulfillment and an ideology that consigned them to the home. Feminism was influenced, too, by women's participation in the paid work force.... ...

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STATE v. WANROW

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pp. 306-310

Yvonne Wanrow was convicted by a jury of second-degree murder and first-degree assault. She appealed her conviction to the Court of Appeals. The Court of Appeals reversed.... We granted review and affirm the Court of Appeals. We order a reversal of the conviction [on the ground of] error committed by the trial court in improperly instructing the jury on the law of self-defense as it related to ...

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Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering

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pp. 311-326

IN [RECENT] YEARS ... , many courts and commentators have been sensitized to issues of sex-bias in the law of self-defense. The overwhelming number of cases in which courts have addressed issues of women's self-defense have involved battered women charged with killing men who battered them. The primary legal issue relating to sex-bias in the law of self-defense which courts have addressed1 and on which public attention has focused ...

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Women's Experience and the Problem of Transition: Perspectives on Male Battering of Women

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pp. 327-340

FEMINISM IS (or at least aspires to be) a theory and practice forged directly from women's experience as women. It thus directly implicates our biological status (as female), our sociological status (as those who are identified as, and treated as, women) and our political status (as those who identify with women). As Catharine MacKinnon notes, the "methodological secret" of feminism is that it is built on "believing ...

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Legal Images of Battered Women:Redefining the Issue of Separation

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pp. 341-362

... [T]HIS ARTICLE proposes that we seek to redefine in both law and popular culture the issue of women's separation from violent relationships.1 The question "why didn't she leave?" shapes both social and legal inquiry on battering; much of the legal reliance on academic expertise on battered women has developed in order to address this question. At the moment of separation or attempted separation-for many women, the first ...

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Mapping the Margins: Intersectionality, Identity Politics,and Violence Against Women of Color

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pp. 363-377

... My OBJECTIVE [is to explore] the race and gender dimensions of violence against women of color. ... I consider how the experiences of women of color are frequently the product of intersecting patterns of racism and sexism.... [Based on] a brief field study of battered women's shelters located in minority communities in Los Angeles,1 [I found that in most cases], the physical assault that leads women to these shelters is merely the most immediate manifestation of the subordination ...

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Lavender Bruises: Intra-Lesbian Violence, Law and Lesbian Legal Theory

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pp. 379-387

... INTRA-LESBIAN violence is not a new phenomenon, although the legal reaction it has provoked has at times penalized lesbian sexuality rather than violence. A 1721 German trial transcript, for example, documents intra-lesbian violence: the "two women did not get along. Because the codefendant complained that she did not earn anything, the defendant beat her frequently."1 However, it was not the violent expressions ...

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The Violence of Privacy

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pp. 388-402

... THIS ESSAY explores the ways in which concepts of privacy permit, encourage, and reinforce violence against women, focusing on the complex interrelationship between notions of "public" and "private" in our social understandings of woman-abuse.1 Historically, male battering of women was untouched by law, protected as part of the private sphere of family life. Over the last twenty years, however, as the battered women's ...

Section 4. Rape

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Introduction

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pp. 405-421

FEMINIST CONCERN with rape emerged early in the women's movement.1 Although the feminist agenda was first dominated by other issues (employment discrimination, passage of the Equal Rights Amendment, abortion),2 attention soon focused on male sexual violence toward women.3 Early feminists' views on rape reflected a singular consensus: ...

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Rape: The All-American Crime

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pp. 422-430

I HAVE NEVER been free of the fear of rape. From a very early age I, like most women, have thought of rape as part of my natural environment-something to be feared and prayed against like fire or lightning. I never asked why men raped; I simply thought it one of the many mysteries of human nature. . . . I was never certain why the victims were always women ... but I did guess that the world was not a safe place for women. I observed that my grandmother was meticulous ...

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Rape

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pp. 431-454

ELEVEN YEARS AGO, a man held an ice pick to my throat and said: "Push over, shut up, or I'll kill you." I did what he said, but I couldn't stop crying. A hundred years later, I jumped out of my car as he drove away. I ended up in the back seat of a police car. I told the two officers I had been raped by a man who came up to the car door as I was getting out in my own parking lot (and trying to balance two bags of groceries and kick the car door open). He took the car, ...

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MICHAEL M. v. SUPERIOR COURT

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pp. 455-459

The question presented in this case is whether California's "statutory rape" law, �261.5 of the Cal. Penal Code Ann. (West Supp. 1981), violates the Equal Protection Clause of the Fourteenth Amendment. Section 261.5 defines unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." The statute thus makes men alone ...

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Statutory Rape: A Feminist Critique of Rights Analysis

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pp. 460-470

... STATUTORY RAPE laws provide a concrete example of the advantages and disadvantages of rights analysis. These laws pose a classic political dilemma for feminists. On one hand, they protect females; like laws against rape, incest, child molestation, and child marriage, statutory rape laws are a statement of social disapproval of certain forms of exploitation. To some extent they reduce abuse and victimization. On the other hand, ...

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Rape: On Coercion and Consent

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pp. 471-483

IF SEXUALITY IS CENTRAL to women's definition and forced sex is central to sexuality, rape is indigenous, not exceptional, to women's social condition. In feminist analysis, a rape is not an isolated event or moral transgression or individual interchange gone wrong but an act of terrorism and torture within a systemic context of group subjection, like lynching. The fact that the state calls rape a crime opens an inquiry into ...

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Date Rape: A Feminist Analysis

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pp. 484-494

... DATE RAPE is nonaggravated sexual assault, nonconsensual sex that does not involve physical injury, or the explicit threat of physical injury. But because it does not involve physical injury, and because physical injury is often the only criterion that is accepted as evidence that the actus reas is nonconsensual, what is really sexual assault is often mistaken for seduction. The replacement of the old rape laws with the new laws on sexual ...

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Rape, Racism, and the Law

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pp. 495-510

... THERE ARE MANY different kinds of rape.1 Its victims are of all races, and its perpetrators are of all races. Yet the kind of rape that has been treated most seriously throughout this nation's history has been the illegal forcible rape of a white woman by a Black man. The selective acknowledgement of Black accused/white victim rape was especially pronounced during slavery and through the first half of the twentieth century. ...

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Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment

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pp. 511-528

DURING THE 1980s a handful of state judges either held or opined in dicta what must be uncontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law.1 Indeed, a more obvious denial of equal protection ...

Part III: EMPLOYMENT

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pp. 529-530

Section 5. Employment

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A. The Work-Family Conflict, Occupational Segregation, and Comparable Worth

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pp. 533-548

FEMINISTS IN BOTH the first and the second waves of feminism have been concerned with ameliorating women's work life. In the nineteenth century feminists worked to improve conditions for women factory workers, to secure equal pay, and to permit married women to retain their earnings. From 1868 to 1870, Elizabeth Cady Stanton and Susan B. Anthony advocated reform ...

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Work and Family: The Gender Paradox and the Limitations of Discrimination Analysis in Restructuring the Workplace

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pp. 549-570

TALK ABOUT WORK and family is assumed to be women's talk. It is talk about women's lives, our feelings. Talk about work and family is tied to women's entry into the workforce and the concomitant redefinition of ourselves and our roles. It is also talk about responsibility and conflict, the conflict between work and family.... But talk about work and family ought not to be assumed to be only women's talk ...

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EEOC v. SEARS, ROEBUCK & CO.

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pp. 571-584

This opinion [of the U.S. District Court for the Northern District of IIlinois] marks the culmination of a lengthy dispute between the Equal Employment Opportunity Commission ("EEOC") and Sears, Roebuck & Co. ("Sears"), the world's largest retail seller of general merchandise.... After an extensive investigation and extensive conciliation discussions, EEOC filed this suit in 1979, alleging nationwide discrimination by Sears ...

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EEOC v. SEARS, ROEBUCK & CO. (Appellate Opinion)

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pp. 585-593

These appeals [to the United States Court of Appeals, Seventh Circuit] are the outgrowth of protracted litigation stemming from an EEOC commissioner's charge filed against Sears, Roebuck & Company. [T] he EEOC sought to prove that Sears engaged in a nationwide pattern or practice of discrimination against women from March 3, 1973, to December 31, 1980, by failing to hire and promote females into commission ...

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Equal Employment Opportunity Commission v. Sears, Roebuck &Company: A Personal Account

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pp. 594-610

THE CASE EXPLODED into my life in early September of 1984. Had I heard of the suit against Sears, Roebuck, said the lawyer for the Equal Employment Opportunity Commission on the telephone? Did I know that it was the last of the class action cases and that Sears was the largest employer of women outside the federal government? Discrimination, retail sales, a female work force-would I be willing to testify for the EEOC? ...

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Deconstructing Equality-Versus-Difference: Or, the Uses of Poststructuralist Theory for Feminism

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pp. 611-623

THAT FEMINISM needs theory goes without saying.... We need theory that can analyze the workings of patriarchy in all its manifestations-ideological, institutional, organizational, subjective-accounting not only for continuities but also for change over time. We need theory that will let us think in terms of pluralities and diversities rather than of unities and universals. We need theory that will break the conceptual hold, at least, of those ...

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Deconstructing Gender

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pp. 624-635

IN EEOC V. SEARS, Roebuck & CO.,1 Sears argued successfully that women were underrepresented in its relatively high-paying commission sales positions not because Sears had discriminated against them, but because women lacked "interest" in commission sales. Sears used the language of relational feminism to support its core argument that women's focus on relationships at home and at work makes them choose to ...

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Telling Stories about Women and Wark: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument

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pp. 636-663

How DO WE MAKE sense of that most basic feature of the world of work, sex segregation on the job? ... Social science research has documented, and casual observation confirmed, that men work mostly with men, doing "men's work," and women work mostly with women, doing "women's work."1We know also the serious negative consequences segregation has for women workers. Work traditionally done by women has ...

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Feminizing Unions: Challenging the Gendered Structure of Wage Labor

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pp. 664-682

FEMINIST SCHOLARS in increasing numbers are calling for a feminist agenda that challenges directly the economic, social, and political power imbalance between women and men.... . . . I argue that labor unions can be an effective, central tool in a feminist agenda targeting the gendered structure of wage labor. Collective action is the most powerful and expedient route to female empowerment; further, it is the only feasible means of ...

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Comparable Worth and Its Impact on Black Women

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pp. 683-696

... COMPARABLE WORTH is an issue that has maintained a high place on the "women's agenda" for social and economic equity since 1980, when then EEOC Director Eleanor Holmes Norton described it as "the civil rights issue of the 1980's. "1 Given its visibility, it is amazing that little research has focused on the ramifications of comparable worth in the black community, or on the implications of comparable worth for black women. ...

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Barriers Facing Women in the Wage-Labor Market and the Need for Additional Remedies: A Reply to Fischel and Lazear

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pp. 697-709

FISCHEL AND LAZEAR [in their critique of comparable worth] 1 perceive a world in which women's jobs pay less than men's jobs either because women face barriers to entry into male occupations or because women choose jobs that pay less. They believe that barriers to entry can effectively be eliminated by direct remedies, especially Title VII and the Equal Pay Act. Were these perceptions shared by all, comparable worth would not ...

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Social Construction of Skill: Gender,Power, and Comparable Worth

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pp. 710-724

... PRIOR TO COMPARABLE WORTH, the wage gap was viewed largely as the result of some combination of inadequate human capital on the part of women and of labor market discrimination. Most economists viewed discrimination as a problem of access ---of barriers that either blocked appropriately trained women from entering more complex male jobs or blocked women from obtaining the skills needed to qualify for these jobs.1 ...

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B. Sexual Harassment

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pp. 725-739

Despite the increase in the proportion of women in the labor force, women workers continue to face significant problems in the workplace. One gender-specific problem is sexual harassment.1 Studies suggest that between 40 percent to 80 percent of working women have experienced some form of sexual harassment.2 Many feminists currently regard sexual harassment as a form of violence similar to rape and battering.3 ...

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pp. 740-748

In 1974, respondent Mechelle Vinson met Sidney Taylor, a vice president of what is now petitioner Meritor Savings Bank (bank) and manager of one of its branch offices. When respondent asked whether she might obtain employment at the bank, Taylor gave her an application, which she completed and returned the next day; later that same day Taylor called her to say that she had been hired. With Taylor as her supervisor, ...

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ELlISON v. BRADY

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pp. 749-754

... Kerry Ellison worked as a revenue agent for the Internal Revenue Service in San Mateo, California. During her initial training in 1984 she met Sterling Gray, another trainee, who was also assigned to the San Mateo office. The two co-workers never became friends, and they did not work closely together. Gray's desk was twenty feet from Ellison's desk, two rows behind and one row over. Revenue agents in the San Mateo office often went to lunch in groups. In June of 1986 ...

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Sex at Work

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pp. 755-778

DURING THE 19705 AND 19805, rape law reform occupied a prominent place on the agendas of feminist organizations across the country. It was said by many, and with good reason, that the history of rape law was a history of both sexism and racism; that too often the victim was victimized a second time by a legal system which focused more on determining her fault than the man's.... All of these criticisms were voiced loudly; ...

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"What's the Big Deal?" Women in the New York City Construction Industry and Sexual Harassment Law, 1970-1985

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pp. 779-796

THE RECENT HISTORY of women's participation in the New York City construction industry provides historians and lawyers with an opportunity to broaden their perspectives on gender as a tool for social and legal historical analysis. 1 At the same time, it offers the opportunity to assess the effectiveness of the legal system as a tool for social change....2 [T]he emergence of a "sexual harassment" law in the 1970s was a significant accomplishment. ...

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Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress

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pp. 797-807

THE CONVENTIONAL wisdom is that, in the workplace, abuse can be a legitimate instrument of worker control and an appropriate form of discipline. 1 By "abuse" I mean treatment that is intentionally emotionally painful, offensive, or insulting.... It is generally assumed that employers and employees alike agree that some amount of such abuse is a perfectly natural, necessary, and defensible prerogative of superior ...

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Feminist Constructions of Objectivity:Multiple Perspectives on Sexual and Racial Harassment Litigation

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pp. 808-825

IN A VARIETY of disciplines, feminist and postmodem scholars have changed the face of their fields by their persistence in investigating the relationship between knowledge and power.1 There is now a rich body of scholarship demonstrating how particular views of the world come to dominate discourse, how our "knowledge" is far less diverse than our people. A central feature of these new critical inquiries is their skepticism ...

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Whose Story Is It, Anyway? Feminist and Antiracist Appropriations of Anita Hill

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pp. 826-844

As TELEVISION, the Clarence Thomas/Anita Hill hearings played beautifully as an episode right out of 'The Twilight Zone." Stunned by the drama's mystifying images, its misplaced pairings, and its baffling contradictions, viewers found themselves in a parallel universe where political allegiances barely imaginable a moment earlier sprang to life: an administration that won an election through the shameless exploitation of ...

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Exit: Power and the Idea of Leaving in Love, Work, and the Confirmation Hearings

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pp. 845-860

EXIT-THE DOOR with the glowing red sign-marks the road not taken that proves we chose our path. Prevailing ideology in both law and popular culture holds that people are independent and autonomous units, free to leave any situation at any time, and that what happens to us is therefore in some measure the product of our choice. When women are harmed in love or work, the idea of exit becomes central to the social ...

Part IV: REPRODUCTION

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pp. 861-862

Section 6. Motherhood and Reproductive Control

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A. Motherhood

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pp. 865-873

MOTHERHOOD HAS OCCUPIED a central place in feminist practice and theory.1 From its beginnings, the women's liberation political agenda targeted the problems faced by working mothers. At the second annual conference of the National Organization for Women in 1967, feminists advocated the establishment of daycare centers in the belief that government-subsidized childcare was necessary in the fight for equality.2 Continuing ...

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M Is for the Many Things

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pp. 874-881

MOTHERHOOD IS at present and at last academically fashionable. With few exceptions such as Adrienne Rich's Of Woman Born in 1976, motherhood's neglect in curricula and scholarship mirrored its uneasy reception by feminists in general. The identification of motherhood as a source of subordination led early feminists to direct their energies toward creating social structures less encumbered by maternal obligation. Thus, feminist ...

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Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy

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pp. 882-894

IN JULY 1989, Jennifer Clarise johnson, a twenty-three-year-old crack addict, became the first woman in the United States to be criminally convicted for exposing her baby to drugs while pregnant.2 Florida law enforcement officials charged Johnson with two counts of delivering a controlled substance to a minor after her two children tested positive for cocaine at birth. Because the relevant Florida drug law did not apply to fetuses ...

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The Colonization of the Womb

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pp. 895-907

[THIS ESSAY FOCUSES] on instances of forced medical treatment during pregnancy (especially Cesarean sections),1 ... It is impossible to fully understand why courts have been willing to coercively intervene in certain women's reproductive lives without understanding such cases as power struggles-struggles over the control of reproduction and the meaning of motherhood.... ...

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Sapphire Bound!

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pp. 908-915

The task of articulating and advancing distinctive minority feminist jurisprudential stances will become easier as those of us interested in the status of minority women begin to analyze concrete cases and legal problems. To substantiate my point that a black feminist perspective can and must be made manifest, I have attempted to apply the rough, tentative thesis I advance above to the examination of a particular decision, ...

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Child Abuse: A Problem for Feminist Theory

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pp. 916-931

A BROAD PROFESSIONAL and popular awareness of the disturbing and not uncommon reality of child abuse has developed during the past two decades. Responses in legislation and the legal process reflect this awareness. Prosecution of child abuse has greatly accelerated; children's accounts of sexual abuse and other forms of abuse are now recognized as deserving credence; and procedural accommodations have been instituted ...

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B. Abortion

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pp. 944-965

SOCIAL CONTROL of women's reproductive capacity has been a central concern of the women's movement. Framing the issue as women's right "to control their own bodies," 1 feminists today regard reproductive control as a prerequisite to personal and political empowerment.2 In contrast, abortion rights were not a concern of nineteenth-century feminists, who worried instead about death from childbirth.3 This distinguishes ...

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ROE v. WADE

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pp. 953-961

This Texas federal appeal and its Georgia companion, Doe v. Bolton, 410 U.S. 179, present constitutional challenges to state criminal abortion legislation.... We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, ...

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The Struggle for Reproductive Freedom: Three Stages of Feminism

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pp. 962-970

... THE STRUGGLE FOR birth control which emerged in the nineteenth century ... was part of a feminist movement, challenging the subordination of women in sexuality particularly and in the family and society generally. From then on, the birth control movement, even when organizationally autonomous, has always reflected the historical strength and development of feminism. ...

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A Defense of Abortion

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pp. 971-984

MOST OPPOSITION to abortion relies on the premise that the fetus is a human being, a person, from the moment of conception. The premise is argued for; but, as I think, not well. Take, for example, the most common argument. We are asked to notice that the development of a human being from conception through birth into childhood is continuous; then it is said that to draw a line, to choose a point in this development and say ...

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Privacy v. Equality: Beyond Roe v. Wade

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pp. 985-994

ROE v. WADE1 guaranteed the right to choose abortion, subject to some countervailing considerations, by conceiving it as a private choice, included in the constitutional right to privacy. In this critique of that decision, I first situate abortion and the abortion right in the experience of women. The argument is that abortion is inextricable from sexuality, assuming that the feminist analysis of sexuality is our analysis of gender inequality. ...

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Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection

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pp. 995-1006

[T]HERE ARE SERIOUS constitutional concerns presented by abortion-restrictive regulation that [Roe v. Wade] does not address. Restricting women's access to abortion implicates constitutional values of equality as well as privacy.... A growing number of commentators have begun to address abortion regulation as an issue of sexual equality, 1 articulating concerns scarcely recognized in prevailing accounts of abortion as a ...

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Reproductive Laws, Women of Color, and Low-Income Women

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pp. 1007-1018

REPRODUCTIVE RIGHTS, like other rights, are not just a matter of abstract theory. How these rights can be exercised and which segments of the population will be allowed to exercise them must be considered in light of existing social and economic conditions. Therefore, concerns about the effects of race, sex, and poverty, as well as law and technology must be actively integrated into all work and discussions addressing reproductive ...

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An Equal Protection Analysis of U. S. Reproductive Health Policy:Gender, Race, Age, and Class

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pp. 1019-1031

THE PURPOSE OF THIS essay is to bring an "anti-essentialist" and "reproductive health" perspective to the public policy debate concerning pregnancy-related regulations, including, but not limited to, abortion regulations.... [T]he abortion debate, as reflected in both pro-choice and pro-life writings, has often been overly superficial and general in its description of how women are affected by various reproductive choices,1 thereby suffering from a problem of essentialism. ...

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Reproductive Freedom and Violence Against Women: Where Are the Intersections?

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pp. 1032-1040

... GENDER VIOLENCE is a major yet often underrecognized obstacle to reproductive choice. In both the abortion rights movement in the United States and the reproductive health movement globally, the "enemy" of self-determination and choice is usually seen as imposing from the top down. In industrial countries, it is the government-through the courts, the legislature, and bureaucratic rulemaking-that threatens to "take away" ...

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C. Reproductive Technology and Adoption

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pp. 1041-1062

THE ISSUE OF WOMEN'S reproductive freedom currently centers on the new reproductive technologies. 1 Primary among these are in vitro fertilization (IVF), embryo transplants, and surrogate motherhood. Several social conditions contributed to the development and use of these technologies: an increase in infertility resulting from delayed childbearing, harmful contraceptive methods, and pelvic inflammatory disease; and ...

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IN THE MATTER OF BABY M.

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pp. 1063-1079

In this matter the Court is asked to determine the validity of a contract that purports to provide a new way of bringing children into a family. For a fee of $10,000, a woman agrees to be artificially inseminated with the semen of another woman's husband; she is to conceive a child, carry it to term, and after its birth surrender it to the natural father and his wife. The intent of the contract is that the child's natural mother will thereafter ...

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Society's Response to the New Reproductive Technologies: The Feminist Perspective

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pp. 1080-1091

THE SOCIAL ROLE of women has been and continues to be primarily defined by the biological fact that only the female of our species can become pregnant. Although both men and women participate in human reproduction, the tasks of bearing and raising children are commonly considered women's jobs. Thus, when there are changes on the horizon in the area of reproductive technology, women are bound to be interested. ...

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Surrogate Motherhood: The Challenge for Feminists

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pp. 1092-1104

SURROGATE MOTHERHOOD presents an enormous challenge for feminists. During the course of the Baby MNew York Times. "We did feel that it should not be made illegal, because we don't want to turn women into criminals. But other than ...

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The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood

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pp. 1105-1111

MY TOPIC IS surrogate motherhood,1 and specifically the issue-the central issue in the controversy over surrogacy-whether contracts of surrogate motherhood, that is contracts whereby a woman agrees, in exchange for money, to become impregnated through artificial insemination and to give up the newly born child to the father, should be legally enforceable, whether by damages or specific performance. I shall not ...

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Junk Liberty

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pp. 1112-1116

WE HEAR LOTS OF high-minded talk about "rights" and "liberty" from the defenders of the human breeding industry. It's a man's right to exercise his constitutionally protected and newly invented "procreative liberty" to hire a woman to bear a child for him. It's a woman's right to sell her body if she so chooses. We are repeatedly told that legalizing the sale of women protects the freedom our ...

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The Socio-Economic Struggle for Equality: The Black Surrogate Mother

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pp. 1117-1125

On September 19, 1990, in Orange County, California, a twenty-nine-year-old Black woman named Anna L. Johnson gave birth to a six-pound, ten-ounce baby boy. A casual observer visiting the maternity ward at St. Joseph's Hospital would have found nothing unusual in the sight of Anna Johnson breastfeeding the tiny newborn. However, as the journalists who swarmed into the hospital to report the birth knew, Johnson ...

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Market-Inalienability

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pp. 1126-1148

SINCE THE DECLARATION of "unalienable rights" of persons at the founding of our republic, 1 inalienability has had a central place in our legal and moral culture. Yet there is no one sharp meaning for the term "inalienable." Sometimes inalienable means nontransferable; sometimes only nonsalable. Sometimes inalienable means nonrelinquishable by a rightholder; sometimes it refers to rights that cannot be lost at all. In ...

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A Feminist Analysis of Adoption

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pp. 1149-1166

Bartholet presents her thesis within a powerful drama-the story of her own decade-long battle with infertility after the birth of her son, and her subsequent adoption of two children from Peru. It is an extraordinary yet ordinary tale, as is the story of every family's creation. Her description of her personal experience is stunning and unforgettable, because she confronts the core issue of the biologic model: how will I feel ...

TABLE OF CASES

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pp. 1167-1170

INDEX

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pp. 1171-1182

CONTRIBUTORS

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pp. 1183-1185


E-ISBN-13: 9781439901366

Publication Year: 1996