Wednesday, August 9, 2017
Bridget Crawford, Kathryn Stanchi & Linda Berger, Feminist Judging Matters: How Feminist Theory and Methods Affect the Process of Judgment, Univ. of Balt. L. Rev. (forthcoming).
The word “feminism” means different things to its many supporters (and undoubtedly, to its detractors). For some, it refers to the historic struggle first to realize the right of women to vote and then to eliminate from the nation’s laws explicit discrimination against women. For others, it is a political movement whose purpose is to raise awareness about and to overcome past and present oppression faced by women. For still others, it is a philosophy – a system of thought and a community of belief entering on attaining political, social, and economic equality for women, men, and people of any gender.
For us, the editors of Feminist Judgments: Rewritten Opinions of the United States Supreme Court, it is all of those things and more. Feminism is both a movement and a mode of inquiry. In its best and most capacious form, feminism embraces justice for all and seeks to ally itself with rights-based movements for people of color, the poor, immigrants, refugees, religious minorities, disabled individuals, LGBTQ+ people, and other historically marginalized groups.
This essay presents feminism as the foundation for a developing form of rich, complex, and practical legal scholarship, the lens and the means through which we may approach and resolve many legal problems. First, the essay explores the intellectual foundations of feminist legal theory and situates the U.S. and international feminist judgments projects within that scholarly tradition. It next considers how the feminist judgments projects move beyond traditional academic scholarship to bridge the gap between the real-world practice of law and feminist theory, a move that made the publication of Feminist Judgments: Rewritten Opinions of the United States Supreme Court an especially fitting topic for the 10th Annual Conference held at the Center for Applied Feminism.
When they write feminist judgments (using feminist perspectives or methods to produce revised versions of actual court opinions), feminist authors translate feminist theory into the language of law practice and judging. Their translations demonstrate the potential for lawyers to incorporate feminist theory and methods into oral and written arguments, for law students to gain deeper insights from and to learn the practical utility of feminist theory, and for judges to recognize how incorporating feminist perspectives may transform the reasoning or outcome of a case without changing the law or the facts of the underlying lawsuit. Finally, the essay uses contemporary examples of feminist judging to illustrate that the gap between feminist theory and judicial decision making is narrowing, a real-world advance that suggests a widening judicial audience for Feminist Judgments.