Legal Feminism: Activism, Lawyering, and Legal Theory

6 Feminist Legal Method

Feminist Legal Method A hand or something passes across the sun. Your eyeballs slacken, you are free for a moment. Then it comes back: this test of the capacity to keep in focus this unfair struggle with the forces of perception —Adrienne Rich 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 like to talk more precisely and practically about how the feminist theory I describe would actually operate. I would like to suggest eight ideas (or steps) that inform a practical analysis of a legal problem. It will strike some as a wrongheaded “structuralist” effort, but I mean only to indicate recurring places in practice where confusion creeps in, where bad habits take over, and where cases are lost. 1. Don’t Get Bogged Down in Conventional Political Divisions As I explained in chapter 4, most political controversy in the United States occurs within a narrow field. In my lifetime, the biggest changes in the polity were wrought by Ronald Reagan and his pro-big-business agenda. Those changes can be understood within the tradition of philosophical liberalism. With regard to the role of the state (whether the 6 100 state is conceived as a mere night watchman or as something slightly more), those changes can be seen as tilting the balance among philosophical liberals to the right, far in favor of the concentration of wealth and against measures designed to “level the playing field.” The George W. Bush administration continues that legacy, and may end up going well beyond it.2 The differences among the contestants costumed for daily political battle, however, are magnified beyond their meanings. Nobody with political clout is seriously talking about changing very much. Redistribution of wealth is certainly happening, but toward the already rich. Environmental protection is merely an irritation to private property, rather than a real threat of deprivation of it. And so on. The debates are nickel-and-dime stuff, mostly. Don’t get me wrong. Nickels and dimes matter greatly. The scope of political theories that contest those nickels and dimes is just not very profound, and it is a real waste of talent and energy when we let ourselves get sucked up into that furious little vortex. The left-versus-right spectrum is largely an artifact, and serves primarily as a smokescreen that contributes to the forces arrayed against transformative political coalitions. Lawyers get comfortable being aligned with particular sides. In civil practice, for example, it is common to identify as a defense lawyer or as a plaintiffs’ lawyer. A legal community might be momentarily surprised to hear that so-and-so is on the other side of a particular case, but it wouldn’t be the death knell for that person’s reputation. Nonetheless, when it comes to progressive coalitions, it is commonplace to hear that a whole movement is wrongheaded, because its proponents are “in bed with” some crowd supposed to be inherently hostile to the proponents’ real interests. During the “porn wars” of the 1980s, for example, the paradigmatic “strange bedfellows” moment occurred pursuant to the allegation that the antipornography feminists were in bed with President Reagan’s attorney general Edwin Meese, and similar conservative opponents of sexual freedom.3 Today, sexual harassment law presents similar opportunities for strange-bedfellow allegations. Unsurprisingly, female speakers are in the foreground in the endless reiteration of familiar arguments against sexual harassment laws. Some of these critics say that proponents of sexual harassment law are prudish anti-sex schoolmarms.4 Others accuse us of participating in an incoherent and misguided effort which is a “clumsy substitute for manners.”5 Feminist Legal Method | 101 This is familiar territory. Obviously, just like any other category of cases, sexual harassment cases are neither all meritorious nor all frivolous . The envisioned onslaught of sexual harassment cases that threaten the desexualization of life has not come to pass so far. Any appearance of that onslaught will call upon the proponents of sexual harassment law to...