Tuesday, June 15, 2021
Martha Ertman, Contract's Influence on Feminism and Vice Versa, Handbook of Feminism and Law in the U.S. (Debora Burke, Martha Chamallas & Verna Williams eds., forthcoming)
This book chapter for an Oxford Handbook on U.S. Feminist Legal Theory describes the role of contract theory and doctrine in feminist legal theory. After a brief discussion of its roots in political theory re: the social contract, sets out examples of feminist theory that portray contract as a route to gender equality, others that signal dangers of contract colluding with gender subordination, and finally an intermediate approach that views contract as a private law laboratory of sorts to try out new forms of relation that eventually can mature to public law rules that recognize gender equality. 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 such as unconscionability and duress. Throughout, this chapter focuses on topics that have generated the most feminist legal attention, which often relate to families.