The interdisciplinary journal Studies in Law, Politics, and Society has published a special issue devoted to Feminist Legal Theory. Here are the articles and their abstracts:
Half a century after the beginning of the second wave, feminist legal theorists are still writing about many of the subjects they addressed early on: money, sex, reproduction, and jobs. What has changed is the way that they talk about these subjects. Specifically, these theorists now posit a more complex and nuanced conception of power. Recent scholarship recognizes the complexities of power in contemporary society, the ways in which these complexities entrench sex inequality, and the role that law can play in reducing inequality and increasing agency. The feminist legal theorists in this volume are emblematic of this effort. They carefully examine the relationship between gender, equality, and power across an array of realms: sex, reproduction, pleasure, work, money. In doing so they identify social, political, economic, developmental, and psychological and somatic forces, operating both internally and externally, that complicate the expression and constraint of power. Finally, they give sophisticated thought to the possibilities for legal interventions in light of these more complex notions of power.
This paper explores four works of contemporary fiction to illuminate formal and informal regulation of sex. The paper’s co-authors frame analysis with the story of their creation of a transdisciplinary course, entitled “Regulating Sex: Historical and Cultural Encounters,” in which students mined literature for social critique, became immersed in the study of law and its limits, and developed increased sensitivity to power, its uses, and abuses. The paper demonstrates the value theoretically and pedagogically of third-wave feminisms, wild zones, and contact zones as analytic constructs and contends that including sex and sexualities in conversations transforms personal experience, education, society, and culture, including law.
This is an article about sex and rape and the messy determinations of consent that mark the boundary between the two. More specifically, the article evaluates the modern baseline presumption of non-consent in sexual encounters in light of different theories of sexuality (feminism on the one hand and sex positivism/queer theory on the other) and in light of how sexuality manifests itself in the lives of contemporary young people. We analyze sexting, media imagery and hook-up culture to find that neither feminism nor sex-positivism provide an accurate account of contemporary sexuality, but neither theory gets it all wrong either. The gendered scripts that troubled feminists continue to govern many casual sexual encounters. What has changed is the extent to which women embrace their own sexual agency and their clear rejection of 2nd wave feminism’s messages with regard to gender and sexual objectification. Empirical work confirms that the sexual encounters that many young women participate in could be classified as rape under the modern legal presumption of non-consent, but most women reject classifying what happens as rape. Their belief in their own agency allows women to construct away their injury. This suggests that nonconsensual sex may not be or is not perceived by its victims to be as injurious as some feminists suspected, but it also means that sex positivists need not worry about over-deterring sex. Women who don’t feel injured, don’t bring rape charges. Moreover, our analysis shows that despite, or perhaps because of, women’s celebration of their own sexual objectification, a great deal of unwanted sex happens, whether consented to or not. This means that while the presumption against consent may not have much effect, it likely does little harm, and if it deters anything it likely deters unwanted sex, whether consented to or not.
From the mid-1980s to the mid-1990s, several prominent feminist legal scholars made a case for “difference feminism.” Inspired by psychologist Carol Gilligan’s classic text, In a Different Voice, these scholars argued that social relationships, caring, and the emotions should be recognized as important to jurisprudence and legal regulation. Today, difference feminism is no longer a dominant movement within legal scholarship, but reformers are bringing “mindfulness,” “emotional intelligence,” and attention to relationships into law and business - a development dubbed “therapy culture” by its critics. This essay describes some of the manifestations of therapy culture in law and argues for more feminist engagement.
This essay poses the question of whether the mainstream feminist movement in the United States, in concentrating its efforts on achieving gender parity in the existing workplace, is selling women short. In it, I argue that contemporary U.S. feminism has not adequately theorized the problems with the relatively unregulated market system in the United States. That failure has contributed to a situation in which women’s participation in the labor market is mistakenly equated with liberation, and in which other far-ranging effects of the market system on women’s lives inside and outside of work - many of them negative - are overlooked. To theorize the effects of the market system on women’s lives in a more nuanced manner, I borrow from the insights of earlier Marxist and socialist feminists. I then use this more nuanced perspective to outline an agenda for feminism, which I call “market- cautious feminism,” that seeks to regulate the market to serve women’s interests.
This paper explores the relationship between feminist theory and rising economic inequality. It shows how greater inequality reflects the valorization of the stereotypically male qualities of competition and hierarchy, producing a greater concentration of wealth among a small number of men at the top, shortchanging men more than women through the rest of the economy, and altering the way that men and women match up to each other in the creation of families. By creating a framework for further research on the relationship between the norms of the top and the disadvantages of everyone else in more unequal societies, the paper pro- vides a basis for feminists to develop a new theory of social power.
The paper demonstrates how the development of winner-take-all income hierarchies, the political devaluation of families and communities, and the terms of the family values debate diminish equality and community. The paper addresses how to understand these developments as they affect both the structure of society and the allocation of power within our families in ways that link to the historic concerns of feminist theory.
Derek Parfit’s non-identity problem calls into question the claims of both the state and individuals when they purport to act for the benefit of future children. This paper discusses how adoption of the non-identity argument as a legal argument could affect reproductive and family policy, demonstrating that it undermines the child-centric approach to assigning legal parentage. The paper concludes, however, that these non-identity problems can be solved by the expected value approach, which demonstrates that efforts to benefit future people can be logically coherent even if those efforts also affect the genetic identities of the future people.