TIME: Almanac 1993/TIME Almanac 1993.iso/time/041789/04178900.018

Text File | 1992-09-23 | 7.1 KB | 133 lines

                                                                                LAW, Page 51

Now for a Woman's Point of View


Feminist scholars challenge male bias in the U.S. legal system


    What brass! When she had the nerve to try to become a
practicing attorney, Myra Bradwell was rebuked by no less a body
than the U.S. Supreme Court. "The natural and proper timidity
and delicacy which belongs to the female sex evidently unfits
it for many of the occupations of civil life," wrote Justice
Joseph Bradley in an 1873 opinion. A century later, the unseemly
became ordinary as women, riding a new wave of feminism, swept
through the nation's law schools. In the U.S. today, more than
40% of law students and 20% of lawyers are women. As their
numbers have swelled, so has their influence. "Our voices are
definitely being heard," says Carrie Menkel-Meadow, a law
professor at the University of California, Los Angeles.

    Women lawyers today are boldly challenging the status quo.
Last week more than a thousand people gathered in Oakland for
the 20th National Conference on Women and the Law, where
feminist scholars explored everything from marriage to murder.
In school courses, articles and reading groups across the
country, women are re-examining all aspects of the law, from
teaching materials to fundamental principles. The aim: to
uproot the sexism and inequality they feel are inherent in
Western legal thought. "The law has been written with men in
mind," explains Professor Mary Coombs of the University of Miami
Law School. "Feminist jurisprudence puts women at the center
and asks, `To what extent is this doctrine or this area of law
designed in a way that implicitly assumes people are men?' "

    Feminist legal theory is highly controversial, but it is the
most dynamic area of law today. Feminist scholars have pioneered
the concept of sexual harassment in the workplace as a violation
of civil rights, catalyzed passage of rape shield laws that
forbid courtroom inquiries into victims' sexual experience, and
expanded the principle of self-defense to cover battered women
accused of killing abusive mates.

    Feminist scholars are also questioning long-held assumptions
in other areas. Catharine MacKinnon, who championed legal
redress for sexual harassment on the job, is reframing the
debate on pornography. MacKinnon, a visiting professor at Yale
Law School, maintains that the central concern is not obscenity
but sexual discrimination, because pornography hurts women and
violates their civil rights. In a controversial stance that has
pitted her against many feminists and civil libertarians, she
favors granting injunctions against pornographers who "traffic
in materials that can be proven to subordinate women."

    Even one of the most sacrosanct areas of jurisprudence,
contract law, is under attack. Feminists charge that the law
tends to uphold agreements concerning the things men produce
but ignores the contributions women make. Says Professor Mary
Becker of the University of Chicago Law School: "Courts have
traditionally refused to enforce bargains between spouses in
which one partner agrees to pay the other for women's work --
child rearing, caretaking and other domestic responsibilities."

    The theoretical ferment began in the early 1970s, when
feminist lawyers joined the battle for women's equal rights.
Advocates scored victories with the acceptance of so-called
gender-neutral law, which, among other things, gave women an
equal opportunity to become estate administrators and to
receive government benefits. But this, observes Professor Martha
Fineman of the University of Wisconsin, "wasn't really a
challenge to the system itself. It was just `Let us in too.' "

    In the late 1970s some feminist theorists rejected this
approach, known as "formal equality." Instead, they have
advanced another concept, which they call "treatment as equals"
and others sometimes refer to as "special treatment." They
argued that there are certain problems, such as violence
directed against women, that cannot be resolved by treating men
and women exactly alike. These scholars insist that biological
differences between men and women must be taken into account by
the law. In effect, declares Christine Littleton, a law
professor at the University of California, Los Angeles, there
must be "equal acceptance" of differences. "Both groups of
feminists are committed to the notion of equality," notes
Littleton. "But we differ in strategies."

    That division is most clearly visible in the issue of
pregnancy. Georgetown University Law Professor Wendy Williams,
the major proponent of equal treatment, maintains that since
"pregnancy leads to a physical inability to work, it should be
treated as any other temporary physical disability." Laws that
give pregnant women specific privileges, she and others argue,
imply unequal status and are likely to prove detrimental to
women in the long run. They cite as an example the protective
labor legislation of the turn of the century that for decades
effectively kept women out of higher-paying jobs. Littleton, on
the other hand, contends that without specific safeguards women
who become parents are often at a disadvantage in the workplace.

    Some feminist scholars believe that the law should take into
account psychological as well as biological distinctions between
the sexes. Women think differently, they contend, and have
different notions of justice. These theorists draw heavily from
the work of Carol Gilligan, a Harvard psychologist, who argues
that women are less concerned than men about whether a
particular action fits existing notions of right or wrong.
Instead, she says, women tend to focus on the context of an
event and how it affects the participants. Says Professor
Barbara Babcock of Stanford University Law School: "We're
concerned about preserving relationships through the law rather
than promoting the antagonistic posture that law often fosters."

    Reaction to feminist theories within the legal establishment
has often been hostile. "Some academics say that feminist legal
theory is too political and too emotional," observes Cass
Sunstein, a professor of law at the University of Chicago and
a rare male participant in the movement. "Every stereotypical
adjective used to denigrate women is used to describe feminist
scholarship."

    Young scholars on the tenure track have found feminist
theory a risky field of concentration. Despite her prominence,
Catharine MacKinnon has been an academic nomad, journeying
through seven law schools in the past decade. Last month she
accepted her first offer of a tenured professorship, at the
University of Michigan. Some feminists advise junior colleagues
to nurture a reputation in safer areas of law before turning to
their real interest. Increasing numbers of women, though, are
ignoring this counsel. Declares Professor Martha Minow of
Harvard Law School: "The lively response to feminist legal work
confirms its power and its indelible message that those who
have been excluded have something important to say."