Tuesday, October 18, 2016
The US Feminist Judgments Conference is this week here at Akron Law.
The background materials for the conference include articles and essays exploring the foundational ideas of the conference, including what feminism means, what feminist judgments are and why we might need them, and the difference feminist decision making might make. To review the materials, go here: US Feminist Judgments CLE Materials
Table of Contents:
Kathyrn Stanchi, Linda Berger, & Bridget Crawford, Introduction to the Book: Feminist Judgments (Cambridge 2016)
Sally Kenney, Thinking About Gender and Judging (2008)
Sally Kenney, Wise Latinas, Strategic Minnesotans, and the Feminist Standpoint: The Backlash Against Women Judges, Thomas Jefferson L.Review (2013)
Heather Roberts & Laura Sweeney, Why (Re)Write Judgments? (2014)
Erika Rackley, What a Difference Difference Makes (2008)
Rosemary Hunter, Can Feminist Judges Make a Difference? (2008)
Rosemary Hunter, Feminist Judgments as Teaching Resources, Oñati Socio-legal Series (2012)
Justice Sonia Sotomayor, Lecture: A Latina Judge’s Voice (2009)
Justice Sotomayor, dissenting, Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056 (2015)
Gonzales v. Carhart, 550 U.S. 124 (2007)
Justice Ginsburg, dissenting in Gonzales
Beverley Baines, Why Not Nine? (2016)
Tracy Thomas & TJ Boisseau, Law, History & Feminism, Introduction to Feminist Legal History (NYU Press 2012)
Wednesday, September 14, 2016
Bradley Areheart, The Symmetry Principle
Abstract:Antidiscrimination principles have been studied and written about for decades. Surprisingly, the question of how some laws protect symmetrically, while others protect asymmetrically, has received little attention. Even more surprising is the fact that legal scholars have not provided any systemic account of symmetry’s function in antidiscrimination law. Title VII, for example, makes it illegal to discriminate against both blacks and whites, against both men and women. In contrast, the Age Discrimination in Employment Act’s scope is asymmetrical in that it protects only those over the age of forty. This Article proposes “the symmetry principle” as a major normative theory for considering the design of antidiscrimination laws. When antidiscrimination laws are symmetrical they have the capacity to harness a unique mix of strengths—while minimizing weaknesses—from previous normative theories regarding the means and ends of antidiscrimination law. The symmetry principle is thus a design compromise, somewhere between the poles of particularism and universalism, in fashioning laws to prevent and rectify subordination.
Monday, May 23, 2016
Paul Kerry (BYU, History), Mary Wollstonecraft on Reason, Marriage, Family Life, and the Development of Virtue in A Vindication of the Rights of Woman, 30 BYU J. Public Law 1 (2015)
The aim of the argument here is to show how A Vindication of the Rights of Woman presents a view of the equal dignity and intellectual capacity of the sexes embedded in the proposition that males and females are beholden to the same standard of virtue and chastity. Wollstonecraft further argues that both women and men have the same obligation to develop virtue by living lives that are ordered to duties by reason. Reason guides the passions and is exercised through the use of moral agency. Although her treatise calls for certain kinds of female independence, there are also spheres of interdependence and complementarity on which she insists in marriage, childrearing, and family life, but also in the development of virtue. Indeed, in the quest to develop virtue, men and women need each other: “The two sexes mutually corrupt and improve each other. This I believe to be an indisputable truth, extending it to every virtue.” Although Wollstonecraft accords religion a central teaching role as well, it is critical to the philosophical underpinnings of her treatise that human reason (God given, in her view) can derive the principles she puts forward and as such her arguments resonate with those made by natural law advocates. Without this set of arguments, Wollstonecraft's compelling philosophical insights are only partially understood if not largely missed, reduced as they are to calls for specific kinds of action rather than understood as reasoned contributions to political thought. A part of the work here must include restoring Wollstonecraft's argument through her own words by close reading.
This begs an important question: How could Wollstonecraft's many words on key elements of complementarity between man and woman in marriage, childrearing, family life, and the development of virtue and the role of reason go undetected or be neglected? Some of Wollstonecraft's ideas are explained away strategically by suggesting that she had to work within the accepted idioms of her time to revolutionize from within the prevalent discourse. On this view, Wollstonecraft is seen to pose her arguments “within a framework that was minimally acceptable to popular prejudices.” The implication is that she cloaked her real arguments inside of language and tropes that would allow other, less acceptable ideas of the time, to be granted passage into the public discourse. Yet, her ideas, those presented here, are strongly present, in some cases tirelessly omnipresent, in her treatise. She holds these up not as the husk in which to hide the real kernel of her meaning, but as essential to her argument--they are the root of her philosophical thinking. It is strangely myopic to classify her thinking on chastity, marriage, the family, and the complementarity of the sexes as mere window dressing because her views are not radical nor break decisively with traditional thinking.
Another answer to the question is that Wollstonecraft's insights are often placed onto a procrustean bed of feminist theory. Wollstonecraft's place in intellectual history has changed along with the political fortunes of the women's movement. Sometimes it appears as if A Vindication of the Rights of Woman is caught in an interpretative struggle over the meaning of feminism, rather than allowing the treatise to challenge and broaden what feminism means. It is tempting to confer on this text a status as a forerunner of modern feminism, but, depending on what a critic defines this to be, such a status can lead to distortions in understanding the text. The risk of “vile anachronism”is always present when studying any thinker from an ideological or theoretical perspective. Finely textured ideas of past thinkers run the risk of becoming flattened to fit an agenda. This apprehension is conveyed in the words of one critic: “One can see how the moral analysis and the social description in A Vindication could be appropriated for a more conservative social theory, which . . . would confine [women] to a desexualized domestic sphere as wives and mothers.” Certainly the multivalent meanings in A Vindication of the Rights of Woman might disturb a tidy reading that would grant it some kind of prototypical status or bind it to one end of a political spectrum. The high aim of scholarship, of course, is to attempt to understand Wollstonecraft's treatise without pressing it tendentiously into one's particular agenda, theoretical, political, or otherwise. Yet, warning about conservative appropriation can easily chill legitimate efforts to rehabilitate a key text in ways that might threaten the dominant feminist paradigms that have confined A Vindication of the Rights of Woman to a narrower reading than is borne out by the evidence. Rather than pre-emptively silencing or ignoring potentially “contradictory implications” it could be that the most interesting insights are to be found in exploring the tensions rather than in pulling or pushing the text in one ideological direction or another.
Friday, May 6, 2016
The law provides that Mother's Day is a ... flag day?
36 USC 117 - Mother's Day(a)Designation.— The second Sunday in May is Mother’s Day.(b)Proclamation.—The President is requested to issue a proclamation calling on United States Government officials to display the flag of the United States on all Government buildings, and on the people of the United States to display the flag at their homes or other suitable places, on Mother’s Day as a public expression of love and reverence for the mothers of the United States.
Wash Post, How Feminism Sold Out by Becoming Cool
This new mutation can be called “marketplace feminism,” the author writes, “a mainstream, celebrity, consumer embrace of feminism that positions it as a cool, fun, accessible identity that anyone can adopt.” If any purported feminist campaign is touched by corporate or private interests, it is suspect. For Zeisler, feminism is feminism and capitalism is capitalism, and when they hook up it’s just gross....
This book’s critique of “marketplace feminism” offers no wiggle room: If you claim feminism without combating structural inequality, your feminism is counterproductive, prioritizing personal advancement rather than attacking the systems that perpetuate wage disparities or gender-based divisions of labor. And don’t bother suggesting that a movement might benefit from the popularization of its tenets — however superficial the interpretations may be — because Zeisler isn’t buying it. “The diversity of voices, issues, approaches, and processes required to make feminism work as an inclusive social movement,” she writes, “is precisely the kind of knotty, unruly insurrection that just can’t be smoothed into a neat brand.”
Wednesday, May 4, 2016
Jamie R. Abrams (Louisville), Debunking the Myth of Universal Male Privilege, 49 U.Mich.J.L. Reform 303 (2016)
Existing legal responses to sexual assault and harassment in the military have stagnated or failed. Current approaches emphasize the prevalence of sexual assault and highlight the masculine nature of the military's statistical composition and institutional culture. Current responses do not, however, incorporate masculinities theory to disentangle the experiences of men as a group from men as individuals. Rather, embedded within contestations of the masculine military culture is the unstated assumption that the culture universally privileges or benefits the individual men that operate within it. This myth is harmful because it tethers masculinities to military efficacy, suppresses the costs of male violence to men, and positions women as perpetual outsiders.
Debunking the myth of universal male privilege in heavily masculinized institutions would advance gender equality and shift the law reform focus. It would bring sexual assault, domestic violence, and sexual harassment into the same frame as the military mental health crisis and even mass solidier-on-soldier shootings. This would reveal the gender equality implications of military mental health and disentangle masculinities and military efficacy. Debunking the myth of univeral male privilege would yield more vigilance to how law reforms can exacerbate hyper-masculine violence. It introduces new entry points to gendered violence in the military, expanding the focus from incident-based responses to recruiting and training.
Tuesday, May 3, 2016
Scott Allen Anderson, Conceptualizing Rape as Coerced Sex
Philosophers, feminists, and legal theorists have long criticized the current definition of rape as it is formulated in most of the states of the U.S. because of its dual “force” and “consent” requirements. Several prominent writers have recently sought to reconceptualize rape as “non-consensual sex,” thus omitting the “force” requirement. While there are some unmistakable practical advantages to such proposals, I argue that such a conceptualization risks failing to grasp what is distinctively problematic about rape for women, and why rape has the effect it does in supporting women’s gender oppression. I suggest that one of the reasons why consent-focused reform proposals have been so popular is because the dominant accounts of coercion in recent philosophical writing have not been suited to help identify rape in terms of coercion. I offer an alternative approach to thinking about coercion which, I argue, can replace the focus on “force” in current conceptualizations of rape in order to avoid their main difficulties, especially with respect to identifying “acquaintance” rape as such. I further show how conceptualizing rape as coerced sex does help explain its distinctive badness both for the individual victims as well as for women as a group.
Scott Anderson’s article Conceptualizing Rape as CoercedSex, in my view, is the best philosophical or legal piece on the subject of rape that has appeared in many years. Its basic insight is powerful, and persuasively argued. Rape, Anderson argues, should be understood neither as “forced nonconsensual sex,” as it is traditionally defined, nor as non-consensual sex, as most reformers today typically urge, but rather as coerced sex. Coercion, in turn, is “best understood as a use of asymmetric power that one sort of agent may hold over another sort based in the former’s ability to inhibit broadly the ability of the latter to act, by means such as killing, injuring, disabling, imprisoning, or drugging…. [thereby placing the former] in a position to threaten another with such harms or constraints in order to induce compliance with demands he might make.”
Monday, May 2, 2016
Heather Roberts (Australian Natl) & Laura Sweeney (NSW Gay & Lesbian Rights Lobby), Review Essay: Why (Re)Write Judgements?, 37 Sydney L.Rev. 457 (2015)
Australian Feminist Judgments is a collection of fictional judgments for real Australian cases that have been rewritten by Australian scholars from the perspective of a feminist judge. Each judgment is introduced by a commentary, written by a different scholar, explaining the legal and historical context of the original decision and the choices made by the feminist judge. This review essay locates the collection within more general debates surrounding judgment writing, particularly leading Australian extra-judicial commentary on how and why judgments are written. Against this larger plane, we consider a number of the key issues raised by the collection about judgment writing, including the significance of recounting the facts of a case, the uses of formalist judicial method and the capacity of judgments to effect change. Drawing on a number of examples from the collection, this review essay contends that Australian Feminist Judgments makes a valuable contribution not only to contemporary feminist debates, but also to issues going to the heart of judicial practices and judgment.
The US Feminist Judgments rewriting projects is here.
A fall conference on rewriting judgments, The US Feminist Judgments Project: Rewriting the Law, Writing the Future is planned for October 20 & 21.
Monday, April 11, 2016
Feminist Experiences of Law
Provocations III: IILAH
27-28 October 2016
Room 920, Level 9, Melbourne Law School
Experience is central to feminist thinking and praxis. Understood as the personal, as the subjective, as political formation, as method, or as a contested concept in philosophy, history, sociology, literary and cultural theory, experience had long shaped debates and struggles about what it means to think and act as a feminist. The work that experience does, and has done, in how feminists understand, contest and live with law has official and unofficial histories, and distinct and diverse forms of contemporary argument. This conference seeks to draw together a broad community of scholars and activists to consider, and reconsider, feminist experiences of law. We invite papers from a range of disciplinary, practice and experiential perspectives - reform and socio-legal projects, legal and feminist theories, legal histories and life writing, institutional and doctrinal analysis. We are interested in new ideas, new scholarship, new experiences, and encourage papers that deploy a range of styles and genres.
Following the successful ‘Post feminism/ post critique’? workshop convened at ANU in 2015, the Feminist Experiences of Law workshop will adopt a similar collaborative and egalitarian format. There will be opportunity for 18 participants to present papers; but we encourage others to attend to broaden the conversation. The workshop will however be capped at 40 participants, to enable opportunities for close engagement. There is no registration cost.
Call For Papers
If you would like to give a paper at the Workshop, we invite you to submit a 300-word abstract that addresses the broad themes of the workshop by 30 May 2016 to email@example.com. Successful participants will be notified by 30 June 2016. Paper presenters will be expected to read and engage closely with the other papers in their session in the lead up to the workshop. Details of the form of this engagement will be circulated closer to the workshop date. We welcome abstracts from Early Career Researchers and Doctoral Candidates. Please note we have some capacity to provide travel bursaries for up to 5 PhD candidates and early career researchers, if selected to give papers. Please indicate in your abstract if you would like further information about this.
If you would like to participate in the workshop although not give a paper, please register by email to firstname.lastname@example.org by 30 May 2016. We would encourage all participants to be available for the two days of the workshop, and be prepared to engage in conversation. Successful participants will be notified by 30 June 2016.
The Organizing collective are Ann Genovese (email@example.com), Di Otto (firstname.lastname@example.org), Jenny Morgan (email@example.com), Teresa Gray (firstname.lastname@example.org), and Margaret Davies (email@example.com)
The Feminist Experiences of Law conference is sponsored by the Institute of International Law and The Humanities (IILAH) at the Melbourne Law School.
Monday, April 4, 2016
Pok Yin Stephenson Chow (Nottingham), Has Intersectionality Reached its Limits? Intersectionality in the UN Human Rights-Treaty Body Practice and the Issue of Ambivalence, Human Rights Law Review, 2016 (Forthcoming)
Over the past two decades, ‘intersectionality’ has become one of the most celebrated notions in international human rights law and discourse. Outside of the US where the concept originated, the sweeping influence of intersectionality has extended to the UK and other members of the European Union where intersectionality has ‘become part of policy initiatives’. It was remarked that intersectionality ‘has acquired considerable conceptual purchase in international human rights law and activism’ and has become the standard multi-disciplinary approach ‘for analyzing subjects’ experiences of both identity and oppression’.
The recognition that intersectionality gained over the years was also evident in the express and implicit references across UN human rights treaty-bodies practice, where the concept was used to highlight how gender discrimination is often intertwined with discrimination on other grounds, such as race, ethnicity and socio-economic background, thus ‘complicating simplistic, singular understandings of the nature of women’s disadvantage.’ In particular, the Committee on the Elimination of Discrimination against Women (‘CEDAW’) acknowledged intersectionality as a ‘basic concept for understanding the scope of the general obligations of States parties [of the Convention]’. Nevertheless, despite such express acknowledgements, the effectiveness of the concept remained uncertain. In particular, it remained unclear whether the juridical understanding of ‘intersectionality’ could fully honor the complexity that intersectional analysis demands. Conaghan thus argues that although intersectionality has contributed tremendously to the feminist movement, the concept has ‘reached the limits of its theoretical potential’. She argues that inequality is a sophisticated and multi-dimensional phenomenon, and that intersectionality, having its roots in law, does not seem to fully address that complexity.
The limitation of intersectionality is exemplified in the works of the UN human rights treatybodies in the context of minority women. Many often cultural and religious practices are deemed ‘harmful’ and discriminatory, but the women who practice them may not agree that these practices are discriminatory. This raised difficult issues regarding whether human rights law could properly accommodate their multiple identities (both as women and as members of their cultural group). Moreover, it is increasingly recognized that the engagement of such practices is often characterised by a form of ‘ambivalence’, i.e. a feeling of ‘open-endedness, incompleteness [and] uncertainty’. Niec observed that while individuals may identify certain manifestations of their traditions as violations of their rights, they may at the same time seek to preserve the group’s culture and religion, because it is the latter that ‘shaped and defined [her] identity as a member of that collective’. Radhika Coomaraswamy, UN Special Rapporteur on Violence against Women, its Causes and Consequences, remarked that even in situations where women have migrated from the community of their birth, the vast majority continued to retain a deep emotional attachment to group identity, and in this respect, the advocacy of the prohibitionof certain practices might offend their sense of dignity and belonging. While it may be reasonably expected that intersectionality could play a greater role in resolving such conflicts – that the application of intersectionality would better address the multiple identities of minority women – the concept have only yielded partial solutions, as shall be demonstrated below.
This article examines the application of intersectionality across the practice of the UN human rights treaty-bodies. Echoing the concerns raised by Conaghan, it ponders the question: whether intersectionality has reached its limits? In particular, it seeks to examine whether intersectionality as applied by the UN treaty-bodies offer a satisfactory solution to situations of ‘ambivalence’.
Thursday, March 3, 2016
Feminist Legal Theory
Susan Appleton and Susan Stiritz - Going Wild
Katharine Baker and Michelle Oberman - Women's Sexual Agency
Angela Harris - Care and Danger
Maxine Eichner - Market-Cautious Feminism
June Carbone and Naomi Cahn - Unequal Terms
Jennifer Hendricks - Schrodinger's Child
Tuesday, February 2, 2016
Anita Bernstein (Brooklyn), The Feminist Jurisprudence of Jack B. Weinstein, 64 DePaul L Rev. 2015
Abstract:As this Symposium demonstrates, Jack B. Weinstein continues to write decisional law that has edified and stimulated expert readers for many decades. The Weinstein trove also contains feminist jurisprudence. Starting no later than 1974 and into the current millennium, Judge Weinstein has been ameliorating the burdens of gender-oppression. This Article groups decisions published by the Judge into six gender-related themes: women of low income, sentencing female offenders, women’s civil rights, “the woman’s Constitution,” women’s redress for personal injury, and feminism beyond women. It also identifies what is feminist about this extraordinary compendium.
h/t Larry Solum
Wednesday, December 9, 2015
National Women's Law Center, Let's Talk About Intersectional Feminism
Recently, the Ms. Foundation launched the #MyFeminismIs campaign “to paint a broad, inclusive and intersectional picture of Feminism as we continue to challenge and change the conversation around equal rights.” The campaign aims to start a dialogue about feminism as a movement for the equality of all genders and what feminism looks like for each of us.
If you’re new to the term, intersectionality is a word coined by Professor Kimberlé Crenshaw, who defined it as “the view that women experience oppression in varying configurations and in varying degrees of intensity. Cultural patterns of oppression are not only interrelated, but are bound together and influenced by the intersectional systems of society. Examples of this include race, gender, class, ability, and ethnicity.”
In other words, the ways that people experience discrimination — based on sex, race, gender identity, ability, sexual orientation, size, religion, national origin, the list goes on — can’t be separated into categories because these systems of oppression are all connected. And because various forms of oppression are intertwined, an intersectional lens is fundamental to feminism as a movement for liberation and equality. We can’t work for gender equality without addressing other issues of inequality like police brutality against people of color, immigration reform, Islamophobia, or discrimination and violence against the LGBT community.
That’s why a campaign like #MyFeminismIs, which focuses on a broad, inclusive, and intersectional feminism, is so exciting. We come to our work, our activism, our feminist movement as our whole selves — so our work, our activism, and our movement should reflect that. What the #MyFeminismIs campaign is doing to continue the conversation about what inclusive, intersectional feminism like — in the media, in academia, in organizing and activism, and in the women’s advocacy world — will help shape and strengthen the future of feminism.
Thursday, December 3, 2015
Claire Bond Potter, Is the Internet the Final Bohemia?. Chronicle.
Yet flexible, voluntary networks in virtual space offer other political and intellectual possibilities, and we should imagine them before it is too late. Jacoby has said that even though he was wrong about a few things, he was right about most things. I’m glad he did. We may disagree about the importance of intellectual movements anchored principally by women, people of color, and queers, but we don’t disagree about how quickly these movements have been sucked into the academy — the barbarians at the gates becoming gatekeepers in turn. Internet bohemia, with its disdain for credentialing, and its networks that form, dissolve and form again according to new needs and desires, could, in fact, be different.
Saturday, November 21, 2015
National Women's Law Center, My Feminism Is: Justice Everywhere. Advice to high school seniors, and women, on embracing feminism.
Feminism isn’t always an easy road, but you are going to be so glad you pulled out of the metaphorical driveway.
To me and you, feminism is justice – people are being mistreated and oppressed and kept down, in direct and institutionalized ways. There has to be something we can do has always been our refrain. In feminism, we’ve found tools to make the world fair, and friends and colleagues to work with through it.
There is so much inside of you right now, Sam. Your strength is in correcting injustice and the determination your legacy offers....
So stop being afraid of saying you’re a feminist. You know who you are.
Tuesday, October 20, 2015
The second part of the chapter proceeds to articulate a relational approach to children’s subjectivity. Building on the work of Martha Minow, this approach highlights children’s experiences as active participants in multiple relationships directly and indirectly mediated by law. Children’s relationships are not confined to the family, nor do they solely involve hierarchal dynamics of development and control. Children instead experience a broad range of interactions as children, separate from or in addition to their interests in becoming adults, even as they remain dependent on adults for many aspects of their lives. Children’s relationships therefore blur the traditional distinction between subjects and objects, providing a foundation for law to acknowledge and foster children’s intrinsic interests as children.
Thursday, October 1, 2015
Kathleen Darcy (Michigan State), Medicalizing Gender: How the Legal and Medical Professions Shaped Women's Experience as Lawyers, 4 Tennessee J. Race, Gender & Social Justice 31 (2015)
Abstract:Despite significant progress, women in the legal profession still have not advanced into positions of power at near the rate in which they saturate the legal market. Scholars agree that simply waiting for parity is not sufficient, and, thus, they have identified many of the barriers that contribute to women’s difficulties. To date, however, the role that scientific and medical understandings play on the evolution of law, and on women as lawyers, has not received examination until now. To this end, I posit that medicine played a significant role in shaping societal expectations and assumptions about gender, and was similarly influenced by already-existing societal assumptions about gender. This created a complex and substantial barrier that kept women from exploring options outside the “spheres” of society they traditionally occupied. This article explores how medically-supported gender theories, in practice, have actually operated to limit women’s professional progress, relegating them to traditional gender roles and halting their ascension in the ranks of the legal profession. I examine how this barrier operates in three ways: how early women lawyers adopted these medical theories into views about their own gender; how society and those around these early women lawyers adopted these views to shape expectations about women as lawyers; and how the court explicitly and implicitly relied on these assumptions about gender to keep women out of the legal profession. An examination of how these medical and scientific theories about gender have shaped the ways society views gender, and vice versa, can help illuminate the discussion on the barriers that impede modern women lawyers.
Monday, September 28, 2015
When the novelist Jennifer Weiner watched the second Republican presidential debate with her two daughters on Sept. 16, she felt a sense of pride at seeing the lone woman on stage,Carly Fiorina, hold her own against Donald J. Trump.
Then Mrs. Fiorina denounced abortion and Planned Parenthood in a graphic monologue that thrilled many conservative Republican voters but left Ms. Weiner appalled.
Thursday, August 13, 2015
Here in America, at the beginning of the twenty-first century, sexism is very much on the wane, but misogyny is not. Sexism—the conviction that women don’t deserve equal pay, political rights, or access to education—can be combatted by argument, by anti-discrimination laws, and by giving women the opportunity to prove their ability. Misogyny is not amenable to such advances; they can in some circumstances exacerbate it, though they may drive it underground. An example of misogyny is when someone online threatens to rape and mutilate a woman whose opinions that person does not like. Another is when a Presidential candidate says of a female journalist whose questions he finds impertinent, “There was blood coming out of her eyes, blood coming out of her—wherever.”
Sunday, August 2, 2015
Martha Chamallas (Ohio State), Theorizing Damage Through Reproductive Torts, Jotwell.
Of the five basic elements of the negligence cause of action (duty, breach, cause-in-fact, proximate cause, damage), the concept of “damage” (sometimes referred to as “injury” or “harm”) has probably received the least attention from torts scholars and certainly commands less time in the classroom. Indeed, the comparative lack of discussion likely exacerbates the common tendency to confuse the concept of actionable damage with the related topic of recoverable damages, i.e., those specific items of loss (such as medical expenses or sums paid for pain and suffering) that are a consequence of an actionable injury. In the U.S., controversial claims for negligent infliction of emotional distress and for reproductive injuries, especially wrongful conception and wrongful birth claims, have triggered debates under the headings of duty, proximate cause, or recoverable damages. Recently, however, Gregory Keating has argued that the concept of harm “can do more work than it is presently being made to do,” inviting more theorizing about what lies beneath the largely intuitive concept of harm or damage.
This ambitious article by British tort theorist Nicky Priaulx aims to fill the void by theorizing about the normative dimensions of the concept of damage. Although she doesn’t use the f-word (feminism) until the end of the piece when she discusses just whose injuries tend to be addressed by tort law, her approach is clearly informed by feminist scholarship, as is evident by her starting point that the concept of damage is “imbued with ideals of social justice and equality [and] directed towards treating like cases alike.” (P. 2.) But Priaulx’s legal feminism is of a newer stripe: it is as much about harm to men as it is about harm to women and is interwoven into a universal theory about how to shape tort law to fit the social experience of injury.