Pub Date : 2022-02-14DOI: 10.1093/oxfordhb/9780197519998.013.4
Jennifer Nedelsky
This introduction to relational feminism builds on Nedelsky’s approach in which relationships are central to all human beings, not just to women. A relational approach to law provides both a clearer analysis of what is at stake in disputes over law and policy and a framework for assessing proposals for change. The basic claims are that relationships make possible the lived reality of values like security or autonomy, and law is one of the primary means of shaping relationships. Relational feminism reconceptualizes core concepts, like autonomy; links them to underlying conceptions of the self; and explains their role in law. The examples show the benefit of a relational approach to self, autonomy, and rights (and law more broadly). From questions of hierarchy and racism to environmental harm to mental health and a reconceptualization of property, the chapter works through the application of a relational approach.
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Pub Date : 2022-02-14DOI: 10.1093/oxfordhb/9780197519998.013.7
Rosalind Dixon, Amelia Loughland
American legal feminism has many different variants, each offering important insights. The danger, however, is that this complexity to feminist legal thought may cause some lawyers and scholars to “tune out” to feminist insights. We provide a way of understanding these various insights, which acknowledges their complexity but seeks to make them more accessible. To do so, we propose the idea of feminist “disruption,” “amelioration,” and “transformation” as organizing principles that underpin feminist thought, in different ways and to different degrees, but which provide a common language for understanding new and older feminisms. We illustrate this approach, and its potential benefits, through the lens of a feminist analysis of COVID-19 and its impact.
{"title":"Gender Disruption, Amelioration, and Transformation","authors":"Rosalind Dixon, Amelia Loughland","doi":"10.1093/oxfordhb/9780197519998.013.7","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780197519998.013.7","url":null,"abstract":"American legal feminism has many different variants, each offering important insights. The danger, however, is that this complexity to feminist legal thought may cause some lawyers and scholars to “tune out” to feminist insights. We provide a way of understanding these various insights, which acknowledges their complexity but seeks to make them more accessible. To do so, we propose the idea of feminist “disruption,” “amelioration,” and “transformation” as organizing principles that underpin feminist thought, in different ways and to different degrees, but which provide a common language for understanding new and older feminisms. We illustrate this approach, and its potential benefits, through the lens of a feminist analysis of COVID-19 and its impact.","PeriodicalId":127651,"journal":{"name":"The Oxford Handbook of Feminism and Law in the United States","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114984956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-02-14DOI: 10.1093/oxfordhb/9780197519998.013.19
Sally J. Kenney
Backlash is a reaction to real or perceived change, leaving progressives worse off by catalyzing conservatives to oppose change by changing their opinions to be more negative, holding opposing views more deeply, or taking action, including violence, when they would not have otherwise. The claim that progressive social change has been counterproductive is an empirical one, but too often those diagnosing backlash fail to distinguish what is truly a measurable setback from the fierce countermobilization of preexisting opponents who are losing ground. Progressives themselves have famously warned against using courts in particular to advance the causes of civil rights, gender equality, or gay rights, yet careful examination reveals no regression in response to legal progress. Once we complicate a simple linear understanding of progress, think about gender inequality intersectionally, and add an analysis of discursive countermobilizations to simple empirical measures of progress, we must conclude the implicit baggage the concept carries outweighs its usefulness.
{"title":"Backlash Against Feminism","authors":"Sally J. Kenney","doi":"10.1093/oxfordhb/9780197519998.013.19","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780197519998.013.19","url":null,"abstract":"Backlash is a reaction to real or perceived change, leaving progressives worse off by catalyzing conservatives to oppose change by changing their opinions to be more negative, holding opposing views more deeply, or taking action, including violence, when they would not have otherwise. The claim that progressive social change has been counterproductive is an empirical one, but too often those diagnosing backlash fail to distinguish what is truly a measurable setback from the fierce countermobilization of preexisting opponents who are losing ground. Progressives themselves have famously warned against using courts in particular to advance the causes of civil rights, gender equality, or gay rights, yet careful examination reveals no regression in response to legal progress. Once we complicate a simple linear understanding of progress, think about gender inequality intersectionally, and add an analysis of discursive countermobilizations to simple empirical measures of progress, we must conclude the implicit baggage the concept carries outweighs its usefulness.","PeriodicalId":127651,"journal":{"name":"The Oxford Handbook of Feminism and Law in the United States","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133598375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-02-14DOI: 10.1093/oxfordhb/9780197519998.013.2
L. Mcclain, Brittany K. Hacker
Liberal feminism remains a significant strand of feminist jurisprudence in the United States. Rooted in nineteenth- and twentieth-century liberal and feminist political theory and women’s rights advocacy, it emphasizes autonomy, dignity, and equality. Liberal feminism challenges unjust gender-based restrictions based on assumptions about men’s and women’s proper spheres and roles. Second-wave liberal legal feminism, evident in Ruth Bader Ginsburg’s constitutional litigation, challenged pervasive sex-based discrimination in law and social institutions and shifted the Supreme Court’s interpretation of the Equal Protection Clause to a more skeptical review of gender-based classifications. Liberal feminists have developed robust conceptions of autonomy, liberty, privacy, and governmental obligations to promote gender equality, including in the family. Addressing internal feminist critiques, liberal feminism shows the capacity to evolve. Maintaining its focus on disrupting traditionally conceived gender roles and fostering meaningful autonomy, it adopts more a complex, nuanced discourse about sex, gender, and the gender binary and embraces new demands for inclusion and equality.
{"title":"Liberal Feminist Jurisprudence","authors":"L. Mcclain, Brittany K. Hacker","doi":"10.1093/oxfordhb/9780197519998.013.2","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780197519998.013.2","url":null,"abstract":"Liberal feminism remains a significant strand of feminist jurisprudence in the United States. Rooted in nineteenth- and twentieth-century liberal and feminist political theory and women’s rights advocacy, it emphasizes autonomy, dignity, and equality. Liberal feminism challenges unjust gender-based restrictions based on assumptions about men’s and women’s proper spheres and roles. Second-wave liberal legal feminism, evident in Ruth Bader Ginsburg’s constitutional litigation, challenged pervasive sex-based discrimination in law and social institutions and shifted the Supreme Court’s interpretation of the Equal Protection Clause to a more skeptical review of gender-based classifications. Liberal feminists have developed robust conceptions of autonomy, liberty, privacy, and governmental obligations to promote gender equality, including in the family. Addressing internal feminist critiques, liberal feminism shows the capacity to evolve. Maintaining its focus on disrupting traditionally conceived gender roles and fostering meaningful autonomy, it adopts more a complex, nuanced discourse about sex, gender, and the gender binary and embraces new demands for inclusion and equality.","PeriodicalId":127651,"journal":{"name":"The Oxford Handbook of Feminism and Law in the United States","volume":"84 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121228549","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-13DOI: 10.1093/oxfordhb/9780197519998.013.39
Martha M. Ertman
Feminist legal theory has both embraced and rejected contract. While contract-based conceptual and doctrinal tools have improved women’s economic and social status, feminists also critique contract-based reforms for colluding with hierarchies of gender, race and class. This chapter charts influential work on both sides of the contract debate and identifies a third approach that sees contract as a mechanism for law to move away from a hierarchal regime by stopping at a contractual way station en route to a more equal system of public ordering. It concludes by identifying ways that feminist legal theorists have injected feminist insights into traditional contract law via doctrines such as good faith in employment contracts, debtor rights in lending relationships, and defenses including unconscionability and duress.
{"title":"Contract’s Influence on Feminism and Vice Versa","authors":"Martha M. Ertman","doi":"10.1093/oxfordhb/9780197519998.013.39","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780197519998.013.39","url":null,"abstract":"Feminist legal theory has both embraced and rejected contract. While contract-based conceptual and doctrinal tools have improved women’s economic and social status, feminists also critique contract-based reforms for colluding with hierarchies of gender, race and class. This chapter charts influential work on both sides of the contract debate and identifies a third approach that sees contract as a mechanism for law to move away from a hierarchal regime by stopping at a contractual way station en route to a more equal system of public ordering. It concludes by identifying ways that feminist legal theorists have injected feminist insights into traditional contract law via doctrines such as good faith in employment contracts, debtor rights in lending relationships, and defenses including unconscionability and duress.","PeriodicalId":127651,"journal":{"name":"The Oxford Handbook of Feminism and Law in the United States","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129809741","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-13DOI: 10.1093/oxfordhb/9780197519998.013.32
Kristin Kalsem
Since the 1980s, feminists have been theorizing about what feminism means and should mean in the context of judging. Different philosophies have informed scholarly and advocacy efforts to address institutional gender bias in the courts, with priorities and strategies shifting over time. Initiatives have expanded to include calls for greater diversity on the bench and improving the process of dispensing justice. This chapter begins by canvassing multiple reasons why more “outsider” judges, marked by gender, race, ethnicity, and other marginalized identities, are desirable. It then examines the ideal of “feminist judging,” concluding with two recent scholarly projects that integrate feminist judging into real-world practices of the judiciary. One project involves training judges using methods of legal participatory action research, a community-based research paradigm that takes a bottom-up approach; the other Feminist Judgments project reimagines landmark legal cases through the rewriting of judicial opinions from feminist perspectives.
{"title":"Feminist Judging","authors":"Kristin Kalsem","doi":"10.1093/oxfordhb/9780197519998.013.32","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780197519998.013.32","url":null,"abstract":"Since the 1980s, feminists have been theorizing about what feminism means and should mean in the context of judging. Different philosophies have informed scholarly and advocacy efforts to address institutional gender bias in the courts, with priorities and strategies shifting over time. Initiatives have expanded to include calls for greater diversity on the bench and improving the process of dispensing justice. This chapter begins by canvassing multiple reasons why more “outsider” judges, marked by gender, race, ethnicity, and other marginalized identities, are desirable. It then examines the ideal of “feminist judging,” concluding with two recent scholarly projects that integrate feminist judging into real-world practices of the judiciary. One project involves training judges using methods of legal participatory action research, a community-based research paradigm that takes a bottom-up approach; the other Feminist Judgments project reimagines landmark legal cases through the rewriting of judicial opinions from feminist perspectives.","PeriodicalId":127651,"journal":{"name":"The Oxford Handbook of Feminism and Law in the United States","volume":"214 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121278311","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-10DOI: 10.1093/oxfordhb/9780197519998.013.24
S. Buel
Feminist jurisprudence has amplified the voices of gender violence survivors long silenced by trauma and male-biased legal doctrine. In critiquing self-defense law’s treatment of survivors, some feminists pressed for recognition of a distinctive set of characteristics purportedly associated with survivors, termed “battered woman syndrome” (BWS). Intended to ameliorate the harsh effects of criminal law on survivors, BWS sought to explain why battered women responded as they did in terms that judges and juries might better relate to the legal requirements for self-defense. One argument is that the law of self-defense must be further recalibrated—beyond the problematic, operative lens of BWS—to better protect those who engage in survival crime. By instead utilizing “battering and its effects” as the framework for relevant evidence, the criminal justice system could become more responsive to survivors. Even beyond recalibrating the law of self-defense to better suit survivors, legal stakeholders can learn much from activists and feminist legal theory about pursuing gender and racial justice, by embracing diverse lenses to actually hear the raced, classed, and gendered narratives of survivors’ lives. Despite missteps with the development of BWS, feminist jurisprudence is gradually increasing understanding of, and empathy for, survival crime.
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Pub Date : 2021-11-10DOI: 10.1093/oxfordhb/9780197519998.013.36
M. Gilman
Feminism has long centered on breaking down the public and private divide that traditionally organized social relations and subordinated women. Privacy is lauded for giving women space for self-determination, but it is also criticized for creating spaces where patriarchy and misogyny can flourish unchecked. Cyberspace heightens the stakes of this tension because it creates almost limitless access to people’s personal data. We live in a datafied society powered by digital profiling, automated decisionmaking, and surveillance systems in which we no longer control our personal data; rather, it is used to control us. Women face multiple, gendered harms in cyberspace, including online harassment, digital discrimination, and sexual surveillance by the “femtech” industry. Yet the United States lacks comprehensive privacy laws, and its analog-era antidiscrimination statutes are no match for the digital world. American privacy protections hinge upon a notice-and-consent regime that puts the onus on users to protect their privacy rather than the entities that benefit from gathering individual’s personal data. Women and other marginalized people have suffered through a loss of privacy in the digital age, but activists have made efforts to ameliorate the harms of cyberspace and to shape privacy norms in a feminist and inclusive manner. It is important to understand the meaning of privacy through four waves of feminist theorizing and activism, to analyze how American privacy law responds to major gender equity challenges in cyberspace, and to examine current feminist theories and models of resistance.
{"title":"Feminism, Privacy, and Law in Cyberspace","authors":"M. Gilman","doi":"10.1093/oxfordhb/9780197519998.013.36","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780197519998.013.36","url":null,"abstract":"Feminism has long centered on breaking down the public and private divide that traditionally organized social relations and subordinated women. Privacy is lauded for giving women space for self-determination, but it is also criticized for creating spaces where patriarchy and misogyny can flourish unchecked. Cyberspace heightens the stakes of this tension because it creates almost limitless access to people’s personal data. We live in a datafied society powered by digital profiling, automated decisionmaking, and surveillance systems in which we no longer control our personal data; rather, it is used to control us. Women face multiple, gendered harms in cyberspace, including online harassment, digital discrimination, and sexual surveillance by the “femtech” industry. Yet the United States lacks comprehensive privacy laws, and its analog-era antidiscrimination statutes are no match for the digital world. American privacy protections hinge upon a notice-and-consent regime that puts the onus on users to protect their privacy rather than the entities that benefit from gathering individual’s personal data. Women and other marginalized people have suffered through a loss of privacy in the digital age, but activists have made efforts to ameliorate the harms of cyberspace and to shape privacy norms in a feminist and inclusive manner. It is important to understand the meaning of privacy through four waves of feminist theorizing and activism, to analyze how American privacy law responds to major gender equity challenges in cyberspace, and to examine current feminist theories and models of resistance.","PeriodicalId":127651,"journal":{"name":"The Oxford Handbook of Feminism and Law in the United States","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116592537","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-10DOI: 10.1093/oxfordhb/9780197519998.013.22
Theresa M. Beiner
This chapter explores the origins, development, and current status of workplace sexual harassment law. Sexual harassment law owes its genesis to a combination of grass-roots feminist organizing and legal feminist theorizing. After initial losses in the courts, feminist lawyers and their clients scored significant victories in the court system. Employers and those accused of discrimination soon fought back, including by participating in the development of an extensive system of training and anti-sexual harassment policies that have not proven helpful to targets of sexual harassment. Feminist legal scholars have offered critiques of the courts’ decisions, taking a variety of approaches to increasing the law’s efficacy and extending its reach to encompass the experiences of men, women of color, and sexual minorities. Yet, plaintiffs using Title VII of the Civil Rights Act of 1964, the main federal antidiscrimination statute applicable to sex discrimination in employment, continue to find themselves thrust out of court due to formalistic rules developed in the court system. This has led other scholars to suggest different legal approaches to address this persistent and disturbing form of workplace discrimination. Whether current grass-roots campaigns like the #MeToo movement will prove more effective than prior legal efforts remains to be seen.
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Pub Date : 2021-11-10DOI: 10.1093/oxfordhb/9780197519998.013.15
N. C. Cantalupo
Beginning in 2009, hundreds of thousands of students and their allies began to mobilize against campus sexual assault, organizing around the groundbreaking civil rights statute, Title IX of the Education Amendments of 1972, and achieving remarkable progress in advancing gender equality in only about a decade. Moving from the Title IX movement’s genesis during the Obama administration to the movement’s direct-action protests and litigation challenging regulations issued in May 2020 by then-Secretary of Education Betsy DeVos, this chapter tells the story of how Title IX and the student movement interacted from 2009 to 2020. During these years, the movement not only weathered backlash but also influenced later feminist movements such as #MeToo and nonfeminists’ understanding of sexual harassment, demonstrating the continued power and promise of both feminist law and feminist organizing.
从2009年开始，成千上万的学生和他们的盟友开始动员起来，反对校园性侵犯，围绕开创性的民权法规——1972年教育修正案第九条(Title IX of the Education Amendments)——组织起来，仅用了大约十年的时间，就在促进性别平等方面取得了显著进展。从《第九条》运动在奥巴马政府时期的起源，到该运动的直接行动抗议和诉讼，挑战2020年5月时任教育部长贝特西·德沃斯(Betsy DeVos)发布的法规，本章讲述了《第九条》和学生运动在2009年至2020年期间如何互动的故事。在那些年里，这场运动不仅经受住了反弹，还影响了后来的女权运动，比如#MeToo，以及非女权主义者对性骚扰的理解，显示了女权主义法律和女权主义组织的持续力量和前景。
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