Monday, March 13, 2023

Etienne C. Toussaint on "The Purpose of Legal Education"

Etienne C. Toussaint has posted forthcoming work on SSRN titled The Purpose of Legal Education. This article is to be published in Volume 111 of the California Law Review (2023). The abstract previews:  


When President Donald Trump launched an assault on diversity training, critical race theory, and The 1619 Project in September 2020 as “divisive, un-American propaganda,” many law students were presumably confused. After all, law school has historically been doctrinally neutral, racially homogenous, and socially hierarchical. In most core law school courses, colorblindness and objectivity trump critical legal discourse on issues of race, gender, or sexuality. Yet, such disorientation reflects a longstanding debate over the fundamental purpose of law school. As U.S. law schools develop antiracist curricula and expand their experiential learning programs to produce so-called practice-ready lawyers for the crises exposed by the COVID-19 pandemic, scholars continue to question whether and how, if at all, the purpose of law school converges with so


This Article argues that the anti-racist, democratic, and movement lawyering principles advocated by progressive legal scholars should not be viewed merely as aspirational ideals for social justice law courses. Rather, querying whether legal systems and political institutions further racism, economic oppression, or social injustice must be viewed as endemic to the fundamental purpose of legal education. In so doing, this Article makes three important contributions to the literature on legal education and philosophical legal ethics. First, it clarifies how two ideologies—functionalism and neoliberalism—have threatened to drift law school’s historic public purpose away from the democratic norms of public citizenship, inflicting law students, law faculty, and the legal academy with an existential identity crisis. Second, it explores historical mechanisms of institutional change within law schools that reveal diverse notions of law school’s purpose as historically contingent. Such perspectives are shaped by the behaviors, cultural attitudes, and ideological beliefs of law faculty operating within particular social, political, and economic contexts. Third, and finally, it demonstrates the urgency of moving beyond liberal legalism in legal education by integrating critical legal theories and movement law principles throughout the entire law school curriculum.



March 13, 2023 in Education, Law schools, Legal History, Race, Theory | Permalink | Comments (0)

Wednesday, March 8, 2023

The Hidden Framework of a Punishment Lens in the Supreme Court's Approach to Public Values

June Carbone & Naomi Cahn, The Court’s Morality Play: The Punishment Lens, Sex, and Abortion, Southern California Law Review (forthcoming)  

The Article uncovers the hidden framework for the Supreme Court’s approach to public values, a framework that has shaped – and will continue to shape – the abortion debate. The Court has historically used a “punishment lens” to allow the evolution of moral expression in the public square, without enmeshing the Court itself in the underlying values debate. The punishment lens allows a court to redirect attention by focusing on the penalty rather than the potentially inflammatory subject for which the penalty is being imposed, regardless of whether the subject is contraception, abortion, gay sex, Medicaid expansion, or pretrial detention.

The Article is unique in discussing the circumstances in which the Court has simultaneously concluded that the state could regulate but could not punish, even if that means redefining a sanction as not punitive. By making visible this framework, we offer the Court and the states a potential off-ramp from the continuation of an ugly and litigious future on abortion access. If the Supreme Court seeks to deflect the outrage over Dobbs, the simplest way to do so would be to take seriously the statement that all it has to do is to return the issue to the states. In that case, the Court’s focus should be, as Justice Kavanaugh suggested in his concurrence, on the impermissibility of punishment that infringes on established rights, independent of a right to abortion, such as the right to travel, the First Amendment right to communicate accurate information about abortion availability, or doctors’ efforts to perform therapeutic abortions necessary to preserve a pregnant person’s health. The Court would not pass judgment on the permissibility of abortion, and it could affirm the propriety of state bans, but still strike down heavy-handed prosecutions and ill-defined prohibitions that impose undue penalties.

After Dobbs v. Jackson Women’s Health Organization, this Article is particularly important for three reasons. First, the Article examines the ways in which the Court has used considerations of punishment to deflect irreconcilable values clashes. Second, a focus on punishment often illuminates the “dark side” of government action, justifying limits on such actions. Third, a focus on “punishment” often illustrates the consequences of government actions, consequences that may be an indirect result of statutes or regulations but that have disproportionate effects on marginalized communities. Understanding how the Court has used this elusive concept in the past may thus help shape the response to Dobbs.

March 8, 2023 in Abortion, Constitutional, Reproductive Rights, SCOTUS, Theory | Permalink | Comments (0)

Tuesday, March 7, 2023

Mary Wollstonecraft's 18th Century Feminist Philosophy of Relational Autonomy

Alan Coffee, "Mary Wollstonecraft and Relational Autonomy" in Routledge Handbook of Autonomy, Ben Colburn (ed.), London: Routledge, 2022, 65-74

Although best known as an early and pioneering feminist, Mary Wollstonecraft has more recently become recognised as a wide-ranging moral and political philosopher (Bergès and Coffee 2016, Bergès, Botting and Coffee 2019). One ideal that is of central importance within her philosophical framework is that of social and personal freedom understood as independence from arbitrary control. Although I generally prefer to speak of ‘freedom’ or ‘independence’ with respect to Wollstonecraft, these being her own terms, the concept that she uses can be understood in terms of a form of autonomy. In particular, it can be argued that Wollstonecraft develops an idea that anticipates and foreshadows the contemporary notion of relational autonomy (Mackenzie 2016, Coffee 2018).

March 7, 2023 in Legal History, Theory | Permalink | Comments (0)

New Book The Jurisprudential Legacy of Justice Ruth Bader Ginsburg

I was happy to contribute a chapter to this new book, The Jurisprudential Legacy of Justice Ruth Bader Ginsburg (Ryan Vacca & Ann Bartow, eds. NYU Press 2023).  

My chapter "Justice Ginsburg's Restrained Theory of Remedial Equity" reveals RBG's surprisingly moderate approach to equitable remedies in gender discrimination cases and in restitution more generally.  I suggest her proceduralist view of the courts, and focus on government action account for her growing moderation over the years.

Table of Contents

1 Gender and the Law: Revisiting the Legacy of a Feminist Icon, Deborah L. Brake

2 Administrative Law: The Feminist State(s) of Ruth Bader Ginsburg, Kali Murray

3 Arbitration: Consent, Not Coercion, Jill I. Gross

4 Bankruptcy: The Scholar, the Harmonizer, and the Institutionalist, Mary Jo Wriggins

5 Citizenship and Immigration Law: Through her Opinions, M. Isabel Medina

6 Civil Procedure: The Institutional Pragmatist, Elizabeth G. Porter & Heather Elliott

7 Copyright Law: Never Bet Against the House...or Senate, Ryan Vacca & Ann Bartow

8 Criminal Procedure: Honoring the Spirit of Their Rights, Melissa L. Breger

9 Death Penalty: Precise Analysis but Broad Concerns, Jeffrey L. Kirchmeier

10 Employee Retirement Income Security Act (ERISA): Toward a Reasonable and Coherent Framework, Maria C. O'Brien

11 Employment Discrimination: Justice Ginsburg Dissents, Sandra F. Sperino

12 Environmental Law: Justice Ruth Bader Ginsburg's Principled Legacy, Uma Outka

13 Family Law: The Egalitarian Family, Joanna L. Grossman

14 Freedom of Express: A Practical Evolution, Dr. JoAnne Sweeny

15 Health Law: Equity is Inextricably Linked to Health Care, Tara Sklar & Kirin Goff

16 Parent Law: A Reliable Compass, W. Keith Robinson

17 Race and the Law: Vinay Harpalani & Jeffrey D. Hoagland

18 Remedies: Justice Ginsburg's Restrained Theory of Remedial Equity, Tracy Thomas

19 Taxation: The Litigator, the Judge, the Justice, Patricia A. Cain & Jean C. Love

20 Voting Rights: Democracy in a Hurricane, Lisa Marshall Manheim

21 Teaching the Life and Law of RBG: Exploring Beyond Her Sex Equality Jurisprudence, Elizabeth Kukura & David S. Cohen

Also available on Amazon.  

March 7, 2023 in Books, Constitutional, Courts, Judges, SCOTUS, Theory | Permalink | Comments (0)

Monday, March 6, 2023

Swethaa Ballakrishnen on "Law School as Straight Space"

Swethaa S. Ballakrishnen has published Law School as Straight Space in volume 91 of the Fordham Law Review. This is a symposium volume giving tribute to the life of Professor Deborah L. Rhode. Ballakrishnen draws upon the framework of Professor Bennett Capers’s framework of The Law School as White Space.

Ballakrishnen's abstract provides: 

*  *  * [A]lthough categories like race and gender have received increasing attention in diversity research, less is known about other nonnormative actors in the legal profession whose voices remain peripheral because of their minority status and/or historic representation. This means that we have little aggregate data about categories like generational capital, sexual orientation, and disability, and when we do know about them, their narratives do not highlight nonnormative subpopulations within these identities. In honoring Rhode’s commitment to making space for the marginal in legal education and clarifying the “no-problem” problems in our midst, this Essay focuses on one strain of nonnormative experience—that of genderqueer persons—to clarify the ways in which law schools, despite their intention and posturing (and sometimes, in spite of such posturing), reinforce linear hierarchies of identity and performance. Although just a small number of lawyers—less than 1 percent—identify as genderqueer, their experiences of isolation within professional spaces highlight important ways in which the legal profession reinforces and expects normativity.


Part I offers an overview of queer marginality in the legal profession by outlining the demographic trends of LGBTQIA+ individuals and the ways in which these data leave out nuances and intersections that might be relevant. Particularly, by using direction from Rhode’s early article, Whistling Vivaldi: Legal Education and the Politics of Progress, this Essay suggests that understanding genderqueer individuals’ experiences in legal education might be crucial to building sustainable equity and responding to new demographic shifts.


Part II uses ethnographic interview data to highlight the perspectives of genderqueer law students. It demonstrates the ways in which “normal” professional practices in law school reinforce the rigidity of the gender binary and call for a performance of propriety that necessarily alienates students who do not fall into strict categories of identity. The gendered nature of law school has the dual (and somewhat paradoxical) implication of making students both want to establish their gender nonnormative identities more actively and feel like those boundaries of representation are not respected. It is this denial of queer inequality—a form of “blasé discrimination”—that offers new operationalization to Rhode’s theorizing about the “no-problem” problem.


Part III uses these perspectives from the periphery as central tools for unpacking the structures of the law school. * * *  I offer that the heteronormative assumptions that are baked into law school form “straight” expectations that are inherent in its institutional framework and that it is, in plain sight, without ever being called out, a “straight space.” Navigation by those who do not fit these categorical frameworks of normativity is always at a cost, which leads students to actively push back against them, even if such expression comes at the behest of new costs. Using accounts from students about name calling and pedagogy in classrooms, as well as the dress, professionalization, and affect expectations seen as inherent to becoming a “good lawyer,” I suggest the ways in which these prefigurations of structural exclusion might impact a range of nonnormative subjects. I then conclude in Part IV by suggesting that paying attention to these subpopulations of students (of whom nonbinary and trans students are inexhaustive examples) is crucial for those committed to reforming legal education beyond platitudes of equality. Rhode’s interest in justice was not just about precise analysis and theory; it was committed to unveiling the structures of inequality that were not yet named. It is the spirit of that endeavor that buoys this Essay’s main contribution. 

March 6, 2023 in Law schools, LGBT, Theory | Permalink | Comments (0)

Wednesday, March 1, 2023

Reclaiming Part 2 of the Power and Control Wheel for Domestic Violence

Tamara Kuennen, Uncharted Violence: Reclaiming Structural Causes in the Power and Control Wheel" 
55 Az. St. L. Rev.; Forthcoming

For thirty years the “Power and Control Wheel” has been the predominant model for understanding domestic violence, shaping the development of law and policy in the U.S. and abroad. On a single vivid page, it captures multiple layers of abuse in intimate relationships. Activists and experts use the model to explain in a nutshell the complexity of domestic violence to survivors, professionals, judges, jurors and the public at large. The Wheel has been translated into scores of languages and adapted to multiple cultural contexts around the globe.

What the world does not know is that, as it is used now, the Wheel is incomplete. When created by anti-domestic violence activists in the early 1980s, the Wheel was accompanied by a second image, called the “Institutional and Cultural Supports for Battering Chart.” This second analytical tool focused on structures outside the relationship that increase one partner’s capacity to abuse the other. Women in consciousness-raising groups in the early 1980s would connect an intimate partner’s tactics (pictured in the Wheel) to institutions, cultural values, and beliefs (listed on the Chart).

This Article is the first in the legal scholarship to excavate the history of the Wheel-Chart dyad. Relying on primary sources, including interviews of the creators of the dyad, the Article demonstrates that the Wheel, as used in its current form, has been sanitized of its original radical, grassroots political vision. The creators’ vision was 1) to name “battering,” and how it manifested in individual, intimate relationships; 2) to connect individual manifestations of battering to larger structural and cultural causes of it; and 3) to design and execute “direct action” plans to resist and challenge these structural and cultural causes. Today it appears that only the first of the above three parts of this vision for social change remains in place.

The Article argues that the current use of the Wheel sheds light on three essential movement challenges that feminist activists and scholars have long identified. One is the lack of focus on structural causes of domestic violence; second is the set of problems that flow from the professionalization of social movements; and third is the tendency of movements to rely on law — in the case of the battered women’s movement, criminal law — to achieve its progressive goal of ending violence against women. In larger context, the loss of this single document — the Institutional and Cultural Supports for Battering Chart—provides a case study demonstrating how a social movement can fall prey to conservative forces.

March 1, 2023 in Theory, Violence Against Women | Permalink | Comments (0)

Tuesday, February 14, 2023

Originalism is Going to Get Women Killed

 Madiba Dennie, Originalism is Going to Get Women Killed, The Atlantic

American law has not historically been good to women, and whatever progress there once was is now vulnerable to regression. This return is being midwifed into the world by the theory of constitutional interpretation known as originalism—the idea that a law’s constitutionality today is dependent on the Constitution’s purported “original public meaning” when the relevant constitutional text was enacted. Its adherents market originalism as fair and free from favor or prejudice—but its effects are not and will not be fair at all. By its very nature, originalism threatens women and other minority groups who were disempowered at the time of the Constitution’s adoption. We must instead develop a new constitutional interpretative method that protects all Americans as equal members of our democratic society.

The Fifth Circuit Court of Appeals demonstrated as much when it relied on originalism in United States v. Rahimi, a case about a law restricting the gun rights of domestic-violence offenders, last week. The central legal issue in Rahimi was not whether protecting women and children from gun violence is good; the court conceded that it is. Rather, the question before the court was whether protecting women and children from gun violence is constitutional. And the court concluded that it is not.

A three-judge panel unanimously ruled that the Second Amendment was violated by a federal statute that made possessing a gun unlawful for a person who is subject to a restraining order in protection of an intimate partner or child. Its explanation for this dangerous ruling was a straightforward application of originalism. The Founders mentioned a right to keep and bear arms in the Constitution. They did not, however, mention women, who are disproportionately victimized by domestic violence. And although today’s lawmakers may care about women’s rights, they cannot deviate from the Founders’ wishes without a formal constitutional amendment. This will almost assuredly have very real, potentially fatal consequences for women in America: The presence of a gun in a domestic-violence situation increases the risk of femicide by more than 1,000 percent. Originalism is going to get women killed.

February 14, 2023 in Constitutional, SCOTUS, Theory, Violence Against Women | Permalink | Comments (0)

Friday, January 20, 2023

Equality Emerges as a Ground for Abortion Rights

Cary Franklin & Reva Siegel, Equality Emerges as a Ground for Abortion Rights

This chapter locates debates over abortion in equal protection and in an evolving understanding of women’s citizenship. Sex discrimination law has grown from the time of Roe to Dobbs; and sex equality arguments can structure the debate about abortion that continues after Dobbs, in litigation and in legislation, in state and federal arenas. As we show, evolving understandings of women’s citizenship have implications for how the state protects new life. The labor of lifegiving is no longer to be coerced or extracted by law—as states enforcing the law of gender status historically assumed it could be. Equal protection commitments give rise to an anti-carceral presumption in regulating abortion. As state laws inside and outside the abortion context attest: States that respect women as equal citizens do not turn, as a matter of first resort, to measures that rely on coercion and control when there are numerous less discriminatory and less restrictive ways to protect potential life. Reaching for carceral solutions strips women of agency, forces them to continue pregnancies and become mothers against their will, and perpetuates the forms of inequality that are the central concern of sex-based equal protection law. To opt for the maximally coercive approach—forced pregnancy and childbirth—when there are alternative means for enabling families to flourish is neither constitutional nor plausibly characterized as promoting life.

h/t Larry Solum, Legal Theory Blog

January 20, 2023 in Abortion, Constitutional, Pregnancy, Reproductive Rights, Theory | Permalink | Comments (0)

Wednesday, November 30, 2022

CFP Big Feminism: The 50th Anniversary of Signs Journal

CFP Big Feminism: The 50th Anniversary of Signs

Signs was founded in 1975 as part of an emergent tradition of feminist scholarship and has been publishing continuously ever since, establishing itself as a preeminent journal in women’s, gender, and sexuality studies. At the time of the journal’s conception, Signs’s founding editorial staff sought not only to raise consciousness and develop theories of women’s oppression but also to challenge the taken-for-granted and to strive for theoretical nuance and interdisciplinarity. To honor half a century of publication, our fiftieth anniversary issue aims to generate new questions and critical discussion about “Big Feminism” – about the role and power of feminist theory – today and into the future.

These fifty years have witnessed consequential feminist debates (over sexuality, over the category “woman,” over approaches to difference, over representations of “third-world” women) and the emergence of new analytical and theoretical frames (to analyze experience, identity, agency, desire, the body, violence, inequality, coalition, work, family, and relationships between self and other, and more). The Signs archive stands as a testament to the creativity, vitality, reach, and impact of feminists and feminist thinkers. Virtually no area of social life and no academic discipline has been untouched or unchanged by those who have contributed their work to the journal.

And yet, as the editors of a recent special issue have written: “The work in this field has never been richer, the future of our field never more imperiled.”[1] From the standpoint of 1975, 2025 may appear to be a feminist pipe dream. Rights that were once aspirational have been codified into law; there are women heads of state the world over; women have not only entered but have transformed the professions; LGBTQ rights, while very much a work in progress, have been achieved to a degree that even recently seemed unimaginable. At precisely the same time, the ground beneath our feet is collapsing. As we write this, we are facing the end of abortion rights and a global upsurge of fascism in which misogyny figures centrally. And,  #MeToo notwithstanding, violence against women continues unabated. From this moment of profound triumph and profound precarity, how do we, as feminists, imagine the next fifty years? What are our feminist visions (utopias and dystopias) for 2075? What work will it take to bend the arc toward gender justice?

This special anniversary issue of Signs seeks to engage with the big feminist questions that remain outstanding after all these years.

  • How has the definition of feminism evolved, and what does it encompass now?
  • How do we grapple with the relationships and nuances between feminism, gender, sexuality, race, and capitalism?
  • How might we imagine a feminist vision for the future, from where we stand now? How might we get there?
  • Whence the durability of patriarchy? Of violence against women? Of the denial of reproductive justice?
  • What are the new forefronts of feminist theory? Compulsory heterosexuality, intersectionality, and gender performance (among others) are concepts that have shaped our feminist thinking over the past fifty years. What are the emergent feminist theories of the fifty years to come?
  • Given the strength of the patriarchy in the 2020s, including but not limited to the shocking efforts to roll back long-standing reproductive rights, what will it take to dismantle this system?
  • Over the past fifty years, feminists of color, queer feminists, and disabled feminists, among others, have transformed the movement with critical attention to race, sexuality, nationality, ability, and age—and yet these inequalities remain. How do we attend to these disjunctures? What inequalities remain unrecognized? How can we transform our own movement while still working for transformation in the wider world?
  • Has the knowledge produced in field of women’s/gender studies managed to advance the work of social and political transformation?
  • What will it take to build better, stronger bridges between academic feminism and feminist activism on the ground? What new coalitions should we be building, and how?
  • How, finally, will feminist historians, writing in 2075, remember 2025? How do we understand our present from the standpoint of the (imagined) future?

Signs particularly encourages transdisciplinary and transnational essays that address substantive feminist questions, debates, and controversies without employing disciplinary or academic jargon. We seek essays that are passionate, strongly argued, and willing to take risks.

The deadline for submissions is February 1, 2023.

Please submit full manuscripts electronically through Signs’s Editorial Manager system at Manuscripts must conform to the guidelines for submission available at

November 30, 2022 in Call for Papers, Theory | Permalink | Comments (0)

Tuesday, November 22, 2022

Queering the Reasonable Person of Tort

Haim Abraham, Queering the Reasonable Person, Chapter in Diverse Voices in Tort Law (Kirsty Horsey Ed., 2023 Forthcoming)

Critical lenses, such as feminist and critical race theories, have been employed extensively to analyze the reasonable person standard theoretically and doctrinally, noting that courts and scholars personify the standards as a middle-class, white, heterosexual man. Consequently, these critical lenses have indicated that real individuals, who do not share the qualities of the personified reasonable man, become vulnerable. They are unlikely to be able to succeed in bringing claims against the people who the reasonable man represents, while they are more likely to be held to a higher standard and as such more likely to be liable.

These critiques are illuminating, but they are not particularly queer, nor do they exhaust all that queer theory can reveal about the reasonable man, and existing scholarship has yet to offer a comprehensive queer theory analysis of the reasonable person. This chapter fills this gap in literature, arguing that despite existing critiques, the reasonable person – as a legal standard – is essentially a queer standard. Yet, it is the very queer character of the reasonable person that places LGBTQ+ individuals at risk. First, past (and current) applications and personifications of the reasonable person into a white middle-class, cisgender, heteronormative individual, raises others’ standard of care while limiting the ability to hold ‘reasonable men’ liable. Second, the move from reasonable man to reasonable person, even if it signals a commitment to inclusivity, does not mean that this objective standard now has a fixed meaning. One of its core features is its ability to take on a wide-range of meanings, thus creating constant uncertainty and flux as there is a risk that that at any given moment the reasonable person will turn back to the reasonable man. The chapter concludes by examining several possible resolutions to the challenge posed by the reasonable man: changing his personification to a more inclusive one; eliminating the personification altogether; or diversifying the judicial composition, arguing that emphasis should be placed on the latter.

November 22, 2022 in LGBT, Theory | Permalink | Comments (0)

Dobbs' Originalism as Anti-Democratic Living Constitutionalism

Reva Siegel, Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance, Texas L. Review (forthcoming0

 This Article examines originalism’s role in overruling Roe in Dobbs v. Jackson Women’s Health Organization. Through this case study the Article explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice whose long-term goal has been the overturning of Roe. As the conservative legal movement has developed originalism, judicial appointments matter critically to originalism’s authority, as do originalism’s appeals to constitutional memory to legitimate the exercise of public power. Examining these different dimensions of originalism’s authority, the Article shows that the conservative legal movement has practiced originalism as form of living constitutionalism that makes our constitutional order less democratic in several important ways.

To demonstrate how this is so, the Article returns to originalism’s roots in the Reagan years and examines originalism’s origins in a backlash to the decisions of the Warren and Burger Courts. In 1980, for the first time—and continuously ever since—the Republican Party’s platform promised that “[w]e will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” I examine the family-values politics from which the quest to overturn Roe emerged, the judicial screening practices developed to pursue it, and the talk of law and politics employed to justify it.

The Article reads Dobbs through a double lens. I first consider how originalists have evaluated the originalism of the opinion (some term Dobbs “living constitutionalist”), and then go on to show how Dobbs depends on the appointments politics and constitutional memory claims I have identified as part of the political practice of originalism. Dobbs’s living constitutionalism serves contemporary movement goals: the history-and-traditions standard that Dobbs employs to overturn Roe threatens many of the same lines of cases targeted for reversal by the architects of originalism in the Reagan administration.

The deepest problem with Dobbs, however, is that its originalism is living constitutionalism that makes our constitutional order less democratic. Dobbs restricts and threatens rights that enable equal participation of members of historically marginalized groups; Dobbs locates constitutional authority in imagined communities of the past, entrenching norms, traditions, and modes of life associated with old status hierarchies; and Dobbs presents its contested value-judgments as expert claims of law and historical fact to which the public owes deference. A concluding Part focuses on constitutional memory as a terrain of constitutional conflict and begins to ask questions about how claims on our constitutional past might be democratized, both inside and outside of originalism, in the aspiration to take back the Constitution from the Court.

November 22, 2022 in Abortion, Constitutional, Theory | Permalink | Comments (0)

Monday, November 21, 2022

J.S. Welsh Publishes Article on the Pro-Trans Legal Movement in the California Law Review

J.S. Welsh has published "Assimilation, Expansion, and Ambivalence: Strategic Fault Lines in the Pro-Trans Legal Movement" in Volume 110 of the California Law Review. The abstract previews:  

For the past five decades, lawyers advocating on behalf of trans people have used arguments based in a binary understanding of gender to win critical legal battles in the fight for gender justice. These binary arguments clearly serve a strategic purpose: achieving major legal victories. Judges from state trial courts to the U.S. Supreme Court seem determined to reify traditional notions of gender identity. But this assimilationist strategy has its costs. The lived experiences of many queer, trans, and gender-nonconforming people is not necessarily consistent with the political goals implicit in the assimilationist approach. As the trans rights movement enters the law reform mainstream, this rift is increasingly exposed. This Article explores the conflicts that arise between groups within the pro-trans legal movement over who “counts” as trans for purposes of organizing and litigating, what compromises are necessary to push the movement forward, and who is included and excluded from political benefits.

November 21, 2022 in Courts, Gender, LGBT, Theory | Permalink | Comments (0)

Friday, November 11, 2022

Different Facets of Feminist Lawyering in India

Shalu Nigam, Different Facets of Feminist Lawyering in India 

Much is being written about feminist lawyering in the West, but what is the purpose of feminist lawyering in the patriarchal context in third-world nations? While reflecting on case laws and activism in India, this essay argues that feminist lawyering in a profoundly hierarchical society is a much broader concept than that of traditional lawyering where a lawyer works not to `win the case’ but aims at the larger goals of eliminating inequalities, eradicating oppression, challenging sexist stereotypes, abolishing fascism and addressing conditions that perpetuate domination. In a society, where citizenship rights are denied to specific groups based on social parameters such as gender, race, caste, class or religion, feminist lawyering in such a context has to be understood broadly as a practice that supports those on the margins while holding the state accountable. It is about questioning the androcentric norms within and outside the courtrooms, asking the law, courts and society to be sensitive about gender concerns and to recognize and enforce the citizenship rights of half of humanity. This essay concludes that the purpose of feminist lawyering is to negotiate and contest the rights at various levels where feminist lawyers strive to transform the androcentric law and the layered, hierarchical society with the aim to enforce constitutional provisions of equality, liberty and social justice in reality.

November 11, 2022 in International, Theory, Women lawyers | Permalink | Comments (0)

Thursday, November 10, 2022

CFP Pandemonium -- Reflections on the Status, Health, Precarity and Promise of the Discipline of Feminist Studies




Scholarly articles should be submitted to




This special issue of Women’s Studies Quarterly invites reflection on the status, health, precarity, and promise of the discipline of women’s, gender, sexuality, and feminist studies in light of our current state of pandemonium. By “pandemonium,” we point not only to those tragedies, inequalities, and disruptions to the university and higher education stemming directly from the Covid-19 pandemic but also to the crisis-roiled political context fomenting a barrage of assaults on feminist studies as a discipline in the United States and elsewhere that have been accelerating for several years prior to the pandemic and have only intensified since its outbreak.

Submissions should address ways our discipline--its individual practitioners and organizational institutions—have been affected by, or have encountered adversity and experienced struggle in the face of:

  • The Global Pandemic and a panoply of consequences flowing from it
  • Right-wing (white supremacist, anti-immigrant, anti- queer/trans, misogynist, etc.) movements
  • Right-wing corporate media and social media
  • Authoritarianism, illiberalism, and threats democratic institutions
  • War, invasion, civil strife, and refugeeism
  • Neoliberalism, corporatism, and commercialization
  • Climate-change disasters, environmental degradation, and climate-change denial
  • Impoverishment and the “austerity” measures and policies arising from the above

We are keenly interested in contributions that document and evaluate the ways that our discipline and its practitioners exercise and exhibit resistance, revolutionary praxis, and refusal to the above in the form of:

  • Scholarly, pedagogical, and administrative strategizing
  • Organizational-, institutional- and alliance-building (both inter- as well as intra-disciplinary)
  • Public engagement, political activism, and direct action (both on- and off-campus)
  • Escape hatches, off-ramps, and alternative social- cultural protest forms and modalities

We welcome contributions that recognize and share artistic and creative endeavors, performances, and cultural interventions offering insight and inspiration regarding the core themes of this issue.

Especially encouraged to submit are women; people of color; Black; Indigenous; gender-variant, LGBTQIA+; disabled people; and those whose work is located outside the United States or who collaborate cross-nationally.


  • Scholarly articles should be submitted to Send complete articles, not abstracts. Remove all identifying authorial information from the file uploaded to Submittable. We will give priority consideration to submissions received by March 1, 2023. Scholarly submissions must not exceed 6,000 words (including un-embedded notes and works cited) and must comply with formatting guidelines at https://www.feministpress. org/submission-guidelines. For questions, email the guest issue editors at
  • Artistic works (whose content relates clearly to the issue theme) such as creative prose (fiction, essay, memoir, and translation submissions between 2,000 and 2,500 words), poetry, and other forms of visual art or documentation of performative artistry should be submitted to Before submitting, please review previous issues of WSQ to see what type of creative submissions we prefer. Note that creative submissions may be held for six months or longer. We do not accept work that has been previously published. (Simultaneous submissions are acceptable if the editors are notified immediately of acceptance elsewhere.) For questions related to creative prose submissions, email For questions related to poetry submissions, email the WSQ’s poetry editor at WSQpoetry@ For questions regarding other forms of artistic or creative work, email the visual arts editor at WSQvisualart@

November 10, 2022 in Call for Papers, Education, Theory | Permalink | Comments (0)

Wednesday, November 9, 2022

Feminist Cyberlaw Perspectives Offer a Clear View of the Nature of Digital Privacy Threats from Abortion Bans

Michela Meister & Karen Levy, Digital Security and Reproductive Rights: Lessons for Feminist Cyberlaw,  
Feminist Cyberlaw (Meg Leta Jones and Amanda Levendowski, eds.), University of California Press, Forthcoming

Reproductive rights in the United States are under threat, and the threat is growing more serious by the day. The 2022 Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, overturning the fundamental right to abortion enshrined in Roe v. Wade, cast into danger the lives and livelihoods of millions of people. The rise of digital technologies has exacerbated these threats in multiple ways, and digital threats have a marked impact on abortion access. Threats to reproductive rights are of paramount importance to people interested in the gendered relationship between law and technology. But they also offer a case study in what a feminist viewpoint provides to cyberlaw even beyond abortion. In this chapter, we offer three lessons for feminist cyberlaw in the wake of Dobbs. Feminist perspectives offer a clear-eyed view of the nature of threats to reproductive privacy. They illustrate that privacy threats indeed lead to physical harms and “dead bodies,” if you prioritize looking for them; they show the insufficiency of protecting discrete pieces of particularly sensitive data while continuing to collect massive amounts of other more general data; and they emphasize the entanglements and interdependence of multiple kinds of vulnerabilities, multiple kinds of attacks, and multiple kinds of targets. Recognizing these characteristics shows an appreciation for the complexity of the problem—a first step toward devising adequate solutions to protect the lives and livelihoods of abortion seekers and providers in the post-Dobbs era.

November 9, 2022 in Abortion, Technology, Theory | Permalink | Comments (0)

Friday, October 21, 2022

Key Lessons on the Theory of Feminism, Law and Gender from the Work of Martha Chamallas

Deborah Brake, Theory Matters—And Ten More Things I Learned from Martha Chamallas About Feminism, Law, and Gender,83 Ohio State L.J. 435 (2022)

This Festschrift article celebrates the scholarship of Martha Chamallas, Distinguished University Professor and Robert J. Lynn Chair in Law Emeritus of the Ohio State University Moritz College of Law, and one of the most impactful scholars of feminist legal theory and employment discrimination of her generation. Mining the insights of Chamallas’s body of work, the article identifies ten core “lessons” relating to feminism and law drawn from her scholarship and academic career. It then weaves in summaries and synthesis of her published works with discussion of subsequent legal and social developments since their publication. These lessons (e.g., feminism is plural; gender is intersectional; gender is constructed and gender constructs, to name a few), along with Chamallas’s scholarly works, remain as relevant as ever, and continue to spark new insights into perennial controversies touching on law and social change, gender and inequality, and feminism’s influence on law.

October 21, 2022 in Gender, Theory | Permalink | Comments (0)

Tuesday, October 11, 2022

Consequences of the Commodification of Feminism for the Millennial Generation of Young Women

Stephanie Frisinger, Commodification of Feminism: Consequences and Insight for the Millennial Generation of Young Women, 55 Creighton L. Rev. 193 (2022) 

After Donald Trump’s election and the Harvey Weinstein sex abuse scandal’s aftermath, many millennial young women shared a collective sense of grief and betrayal. Growing up in the millennial generation provided a generation of young women with a false sense of security when it came to gender equality. An entanglement of commodified feminism, post-feminist rhetoric, and raunch culture created an environment for millennial young women to be susceptible to the belief that they lived in a post-feminist society. Millennial women spent their childhood, adolescence, and early adulthood wearing these rose-colored glasses. And wearing these rose-colored glasses at this critical time in development came with its consequences. Following the events of 2016 and 2017, the rose-colored glasses came off as millennial women had to come to terms with their misplaced optimism in a post-feminist society. Now, as a generation of young women emerge from this impasse, where they have coped with their misplaced optimism, a new feminist wave emerges, eager to learn from the mistakes of the past and continue the fight for gender equality

October 11, 2022 in Gender, Theory | Permalink | Comments (0)

Tuesday, September 20, 2022

Martha Fineman's Feminist Legal Theory Project Historical Archive at Risk of Being Lost

Preserving Our Legacy: An Important Piece of Feminist History is at Risk of Being Lost

One of these women was Martha Albertson Fineman, who in the early 1980s launched the Feminism and Legal Theory Project at University of Wisconsin Law School. For decades, the project has brought together scholars and activists from the U.S. and abroad to explore the most pressing contemporary legal issues affecting women. In multiple-day sessions, organized around specific, evolving sets of issues, feminists presented working papers and debated women’s legal rights. Fineman recorded and preserved these groundbreaking conversations, as well as the working papers and other written material prepared for these sessions.

Fineman is now struggling to convince librarians more accustomed to collecting individuals’ or organizations’ papers of the importance of this historic trove of audio, visual and written materials documenting the collective development of feminist concepts, aspirations and theory.***

For close to four decades, Fineman’s Feminism and Legal Theory Project has hosted hundreds of conversations where feminist thinkers from across the United States and world have shaped and explored a wide range of concepts relating to women’s position within law and society. Those conversations delved into the “public nature of private violence,” the legal regulation of motherhood, feminism’s reception in the media, the relevance of economics to feminist thought, the complexities of sexuality, conflicting children’s and parental rights, the origins and implications of dependency and vulnerability, and the extent and nature of social responsibility.

“Feminism teaches us that the best ideas come from working together in inclusive, supportive groups,” said Fineman. “Feminism has grown through consciousness raising and the sharing of experience. The best ideas and the best politics emerge from collective engagements and processes.”***

“In the Feminism and Legal Theory Project, we created what I called ‘uncomfortable conversations’—events where people who shared values, but disagreed about strategies and implementation, could talk,” said Fineman. “If there were areas of disagreement around collective objectives, you could talk about them and work through them hopefully in a constructive manner. That’s how actual progress can be made.”***

Fineman recorded all of these conversations—a treasure trove of close to four decades of feminist intellectual history. But she is now struggling to find a home for this invaluable archive of the first generation of feminist legal thinkers.

“History has something to teach us. If we don’t collect the history and preserve it, then it can’t teach us,” said Fineman.***

After speaking with people at women’s history archives, Fineman is concerned about how decisions to preserve women’s history are made. “Who makes the determination about what and who in the past matters? How and why they make such decisions ultimately shapes what will constitute women’s or feminist history,” said Fineman. “An important piece of feminist history is at risk of being lost or isolated and sidelined.

September 20, 2022 in Conferences, Education, Law schools, Scholarship, Theory | Permalink | Comments (0)

CFP International Research Conference on Feminist Legal Theory, Gender and Law in Athens, Greece

International Conference on Feminist Legal Theory, Gender and Law

The International Research Conference Aims and Objectives

The International Research Conference is a federated organization dedicated to bringing together a significant number of diverse scholarly events for presentation within the conference program. Events will run over a span of time during the conference depending on the number and length of the presentations. With its high quality, it provides an exceptional value for students, academics and industry researchers.

International Conference on Feminist Legal Theory, Gender and Law aims to bring together leading academic scientists, researchers and research scholars to exchange and share their experiences and research results on all aspects of Feminist Legal Theory, Gender and Law. It also provides a premier interdisciplinary platform for researchers, practitioners and educators to present and discuss the most recent innovations, trends, and concerns as well as practical challenges encountered and solutions adopted in the fields of Feminist Legal Theory, Gender and Law.

Call for Contributions

Prospective authors are kindly encouraged to contribute to and help shape the conference through submissions of their research abstracts, papers and e-posters. Also, high quality research contributions describing original and unpublished results of conceptual, constructive, empirical, experimental, or theoretical work in all areas of Feminist Legal Theory, Gender and Law are cordially invited for presentation at the conference. The conference solicits contributions of abstracts, papers and e-posters that address themes and topics of the conference, including figures, tables and references of novel research materials.

September 20, 2022 in Call for Papers, Conferences, International, Theory | Permalink | Comments (0)

Thursday, September 15, 2022

Canadian Court Feminizes Child Support by Centering it as a Right of the Child

Jodi Lazare & Kelsey Warr, A Gender-Based Approach to Historical Child Support: Comment on Colucci v Colucci. Canadian Journal of Family Law 2022

In June 2021 the Supreme Court of Canada (the “Court”) released Colucci v Colucci, its second decision in twelve months dealing with the complex subject of historical (commonly referred to as retroactive) child support. The case worked a significant shift in the law, arguably the first major revision to the law since the Court’s initial consideration of historical child support in DBS, in 2006. This comment suggests that Colucci represents a new understanding of the way that claims for historical child support should be considered in Canadian family law. The comment argues that in changing the applicable framework, the Court has endorsed a gendered approach to historical child support law that responds to many of the concerns that flowed from DBS.

Drawing on the text of the decision, as well as relevant case law and scholarship, we outline the theoretical foundations for the changes brought by Colucci, as well as their practical implications. We suggest that in clarifying child support as the right of the child, decreasing the emphasis on certainty for payors, and stressing the necessity of financial disclosure, the Court has feminized the law of historical child support. We explain how, using that feminist lens, Colucci modifies the framework for adjudicating historical child support claims, by creating a presumption in favour of an award in the presence of a change of income, softening the three-year time limit of so-called retroactivity, and repositioning and reconceptualizing the DBS factors which now inform how far back a historical child support award should go. In fleshing out and analyzing these changes, we consider the ways in which Colucci may better serve to promote substantive gender equality in historical child support law by responding to women and children’s lived realities.

September 15, 2022 in Courts, Family, International, Theory | Permalink | Comments (0)