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Feminist Lawyering and Legal Method

Published online by Cambridge University Press:  27 December 2018

Kathryn Abrams
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Review Essay
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Law & Social Inquiry , Volume 16 , Issue 2 , Spring 1991 , pp. 373 - 404
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Copyright © American Bar Foundation, 1991 

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References

1 One of the first works to explore these questions in a comprehensive way is Katharine Bartlett's thoughtful article “Feminist Legal Methods, 103 Harv. L. Rev. 829 (1990). Other works that discuss or raise methodological questions include Martha Fineman, “Challenging Law, Establishing Differences: The Future of Feminist Legal Scholarship,” 42 Fla. L. Rev. 25 (1990); Deborah Rhode, “Feminist Critical Theories,” 42 Stan. L. Rev. 617 (1990); Martha Minow, “Beyond Universality,” 1989 Chi. L.F. 115.Google Scholar

2 It is important not to overdraw the distinction between the methods employed by legal scholars and those employed by lawyers. As I will argue, many of the methodological and epistemological assumptions that shape feminist lawyering had their origins in feminist legal theory. However, for purposes of distinguishing my inquiry from those that have come before, I would offer the following comparison. Katharine Bartlett's emphasis, for example, differs from my own in that she asks what methods feminists (as legal scholars and activists) have used to challenge the law's exclusion of different elements of women's perspectives, and what kinds of claims of truth are implicit in these methods, whereas I ask how feminists (as legal activists) have argued, organized themselves, and understood their relationship to other legal actors in their efforts to produce social change. Other recent works that have raised the question of lawyering method include Ruth Colker, “Feminist Litigation: An Oxymoron?—A Study of the Briefs Filed in Webster v. Reproductive Health Services,” 13 Harv. Women's LJ. 137 (1990); Sarah Burns, “Notes from the Field: A Reply to Professor Colker,” 13 Harv. Women's L.J. 189 (1990); Elizabeth Schneider et al., “Lesbians, Gays and Feminists at the Bar: Translating Personal Experience into Effective Legal Argument,” 10 Women's Rts. L Rptr. 107 (1988); Naomi Cahn, “Defining Feminist Litigation,” 14 Harv.Women's L.J. (forthcoming 1991). For a thought-provoking use of literature to reflect on the feminist lawyer's role, see Jane Cohen, “Feminism and Adaptive Heroinism: The Paradigm of Portia as a Means of Introduction,” 25 Tulsa L.J. 657 (1990).Google Scholar

3 The civil rights movement did produce some notable innovations in legal practice, although they did not often take the form of a conscious challenge to method. See Owen Fiss, The Civil Rights Injunction (Bloomington: Indiana University Press, 1978); Abram Chayes, “The Role of the Judge in Public Law Litigation,” 89 Harv. L. Rev. 1281 (1976). In characterizing the legal program of the movement, several contemporary legal scholars have identified both preservative and revisionary strains in the movement's approach to legal conceptualization and argumentation. See Milner Ball, “Stories of Origin and Constitutional Possibilities,” 87 Mich. L. Rev. 2280 (1989); Kimberle Crenshaw, “Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” 101 Ham. L. Rev. 1331 (1988); Patricia Williams, “Alchemical Notes: Reconstructing Ideals from Deconstructed Rights,” 22 Harv. C.R.-C.L L. Rev. 401 (1987).Google Scholar

4 Christina Whitman, “Law and Sex” (review of C. MacKinnon, Feminism Unmodified), 86 Mich. L Rev. 1388, 1389 (1988). For an even stronger argument that law as a “dominant discourse” threatens to “transform feminism,” see Fineman, 42 Fla. L Rev. at 30.Google Scholar

5 I want to stress here that I have chosen to look at feminist lawyers rather than women lawyers. There is a body of literature concerning the legal profession that draws on the insights of Carol Gilligan to suggest that the socialization of women may encourage a moral orientation toward care which has not previously exerted substantial influence over the way that lawyers approach their task, and which may, as women increasingly enter the profession, infuse and shape the practice of law. See, e.g., R. Jack &. D. Jack, Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers (Cambridge: Cambridge University Press, 1989); Carrie Menkel-Meadow, “Portia in a Different Voice: Speculation on a Women's Lawyering Process,” 1 Berkeley Women's L.J. 39 (1985). Although I discuss Menkel-Meadow's work infra at text at nn. 57–58, this essay does not ask about the methods of women lawyers but rather about the methods of feminist lawyers; I make this choice for several reasons. First, I am not fully convinced that one's socialization “as a woman” produces a particular orientation toward moral decision making. At the very least, I believe that speaking of socialization “as a woman” ignores important distinctions among subgroups of women that undoubtedly affect orientation toward moral decision making. Second, being a biological female or even being “socialized as a woman” seems to me less likely to affect the way one practices law than being a feminist. Even if one were to posit some distinct “female” socialization, it is not inevitable that the perception of a tension between personal and professional socialization would lead most women to reform the profession. The perception of women lawyers that they are responsive to a different moral orientation could instead lead them to try to change their personal orientation or to leave the profession. In fact, some empirical and theoretical work suggests that these latter responses are more frequent. See Jack & Jack, Moral Vision at (roughly) 130–70; Joan Williams, “Deconstructing Gender,” 87 Mich. L. Rev. 797 (1989). Being a feminist, on the other hand, does not simply mean having been shaped by the distinct forms of socialization or discrimination that women suffer in a gendered society. It also means having developed a critical agenda for change in society that “originat[es] in the experiences of gender subordination.” Bartlett, 103 Harv. L. Rev. at 834. For a fuller discussion and critique of this usefully broad definition, see id. at 833–36. The kind of critical understanding and resolve to seek change that inheres in the latter part of this definition suggests that the smaller group of feminists who are lawyers are more likely to take a critical or reformist stance toward the methodological norms of their profession than are the larger group of women who are lawyers.Google Scholar

6 Responding to the question of how advisable it is for feminists to use the male-constructed legal system to advance their goals, MacKinnon states (in FU at 228): “The question then becomes not whether one trusts the law to behave in a feminist way. We do not trust medicine, yet we insist that it respond to women's needs. We do not trust theology, but we claim spirituality as more than a male preserve…. If women are to restrict our demands for change to spheres we can trust, spheres we already control, there will not be any.”Google Scholar

7 For a thought-provoking discussion of the reasons why MacKinnon rejects the notion of distinctions among, or a pluralism of, feminists see Christine Littleton, “Feminist Jurisprudence: The Difference Method Makes,” 41. Stan. L. Rev. 751, 754–63 (1989).Google Scholar

8 See Littleton, 41 Stan. L. Rev., at 764, 771. The second element highlights the ubiquitousness of women's sexual objectification by men; it also stresses the connection between the pervasive, almost invisible instances of “use” and the more extreme examples of sexual violation we have been socialized to regard as “abuse.”Google Scholar

9 Among the most hotly contested statements is the assertion that women who regard pornography as raising First Amendment issues are “defending a source of their relatively high position among women under male superiority, FU at 205. In a particularly vituperative passage, MacKinnon tells these women to “stop claiming that your liberalism, with its elitism, and your Freudianism, with its sexualized misogyny, has anything in common with feminism.”Id. Google Scholar

10 The correlate of this proposition is that “[n]either the transcendence of liberalism nor the determination of materialism works for women.”Id. at 117.Google Scholar

11 The defense of “mistaken consent” in the law of rape, for example, is simply a legal embodiment of the perspective of the perpetrator; it should be eliminated as a violation of women's equality “because it takes the male point of view on sexual violence against women” (FT at 244).Google Scholar

12 She suggests, for example, that Jews are victimized and silenced by Nazi speech, and blacks by Klan speech, much as women are victimized by pornography. FU at 209.Google Scholar

13 MacKinnon notes that “[d]oing something legal about a situation that is not really like anything else is hard enough in a legal system that prides itself methodologically on reasoning by analogy.”Id. 167.Google Scholar

14 However, MacKinnon does occasionally employ analogy, and those occasions are useful to consider. First, she sometimes analogizes from one feature of her comprehensive account (particularly one already accepted by the legal system) to another. For example, she sometimes compares the MacKinnon-Dworkin antipornography ordinance, which conceives pornography as a violation of women's civil rights, to the claim under Title VII, which characterizes sexual harassment as a violation of women's civil rights. See FU at 198. Second, she sometimes analogizes from women's oppression to the oppression of another group (rather than vice versa), often in a way that suggests that the legal treatment of the second group is flawed as well. See supra note 12 (suggesting Jews should have been regarded as victims of Nazi speech). Finally, on comparatively rare occasions, MacKinnon analogizes to established legal arguments or categories, but this is only when necessary to establish the constitutionality of her remedial legislation. See FU at 177 (describing definition of pornography under Minneapolis Anti-Pornography Ordinance as “a medium-message combination that resembles many other such exceptions to First Amendment guarantees”).Google Scholar

15 The most memorable version of this attempt occurs in her first lecture, “Not by Law Alone: From a Debate with Phyllis Schlafly,” (FU at 29), where she suggests to Phyllis Schlafly that Schlafly was in fact victimized by a male supremacist administration when she was passed over for a job in the Defense Department.Google Scholar

16 With Andrea Dworkin, MacKinnon has drafted and sponsored municipal anti-pornography ordinances in Minneapolis, Minn., Indianapolis, Ind., and Cambridge, Mass.Google Scholar

17 Two new claims (“quid pro quo” and “hostile environment”) against sexual harassment under Title VII arose in part from the influence of MacKinnon's work. See, e.g., Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981).Google Scholar

18 In her influential work, Sexual Harassment of Working Women (New Haven: Yale University Press, 1979) (“MacKinnon, Sexual Harassment”), MacKinnon examines women's experiences of harassment and draws from these accounts both her characterization of sexual harassment as a form of sex discrimination and her view of the circumstances under which it should be actionable. MacKinnon's view of pornography as an example and a source of sexual subordination was formed through exposure to the accounts of its victims. The Minneapolis ordinance she and Dworkin drafted to curtail it was preceded by a lengthy, wrenching set of hearings in which victims of pornography told their stories to legislators and the public. See Paul Brest and Ann Vandenberg, “Politics, Feminism and the Constitution: The Anti-Pornography Movement in Minneapolis,” 39 Stan. L Rev. 607, 617–29 (1987).Google Scholar

19 See MacKinnon, Sexual Harassment, 1–7.Google Scholar

20 “Feminist Theory in the Grand Style”(reviewing MacKinnon, Feminism Unmodified), 89 Col. L. Rev. 1147, 1175–77 (1989). By arguing that MacKinnon's view of dissenting accounts may be less harsh than her public statements suggest, Olsen has decreased the urgency of questioning whether these condemnations amount to “false consciousness” claims. For a discussion of whether this “strategic” interpretation ameliorates the dangers of “false consciousness” claims by MacKinnon and other feminist scholars, see Kathryn Abrams, “Ideology and Women's Choices,” 24 Ga. L. Rev. 761 (1990).CrossRefGoogle Scholar

21 See Katharine Bartlett, “MacKinnon's Feminism: Power on Whose Terms?” 75 Calif. L. Rev 1559, 1564 (1987).CrossRefGoogle Scholar

22 436 U.S. 49 (1978). The discussion of this case occurs in FU at 63–69. While working on the final draft of this essay, I discovered a similar discussion of MacKinnon's treatment of the Martinez case in Angela Harris' article, “Race and Essentialism in Feminist Legal Theory,”42 Stan. L. Rev 581, 593–95 (1990). I recommend Harris's discussion, and the rest of her superb article, to anyone interested in the racial solipsism implicit in MacKinnon's thought.Google Scholar

23 White American men have been guilty, sequentially and simultaneously, of sexism and imperialism. It is also true that some social problems that hinder Native American tribes were originally instigated by European settlers. See M. Dorris, The Broken Cord. (1989) (arguing that some Native American tribes learned excessive drinking habits from French trappers).Google Scholar

24 As I will explain, this reluctance has several manifestations, including a refusal to speculate in any systematic way to the features of the world that feminists will create, and a rejection of any effort to reframe her argument to reach audiences who may not share or understand her premises.Google Scholar

25 See supra at 12–14.Google Scholar

26 In the area of pornography, for example, she challenges the applicability of the traditional First Amendment paradigm with a broad-brush (if interesting) argument. See FU at 206–13 (arguing that women have been excluded from the Constitution, that the First Amendment has historically protected the speech of the comparatively privileged, and that the First Amendment has become a “sexual fetish” through the subliminal suggestion of such publications as Playboy that its defense is essential to protect the masturbatory use of pornography).Google Scholar

27 See FU at 220 (describing her unrewarded faith in Judge Sarah Evans Barker [the district court judge who struck down the Indianapolis antipornography ordinance] as a “triumph of hope over experience”)Google Scholar

28 This theme echoes throughout Feminism Unmodified. MacKinnon presents it most graphically in a speech entitled “Difference and Dominance” at 45, where she states, “I say, give women equal power in social life. Let what we say matter, then we will discourse on questions of morality. Take your foot off our necks, then we will hear in what tongue women speak.”Google Scholar

29 In Feminism Unmodified, MacKinnon seems satisfied to present solutions in progressively greater detail—precisely as they emerge. One can see such an evolution in the section of the book which addresses the question of pornography. In the earliest two lectures, given in 1982, MacKinnon explains the harm of pornography and the extreme partiality lurking behind the ostensible neutrality of the First Amendment but does not specifically propose a remedy. In the next lecture, given in 1983, she articulates a specific legal theory of pornography as a violation of women's rights and compares it to the legal theory of obscenity, yet she does not explain how women whose rights have been violated can seek redress. In the following lecture, presented in 1984, MacKinnon refers specifically to the Minneapolis Anti-Pornography Ordinance and explains why it is constitutional.Google Scholar

30 Joseph Singer, “Persuasion,” 87 Mich. L. Rev. 2442 (1989) (explaining how author persuaded a class of law students to acknowledge an employee's reliance interest in her job by analogizing to the students' expectation that they would be permitted to graduate).Google Scholar

31 This position has been espoused by critical race theorists and other progressive proponents of change on behalf of subordinated groups. See note 3 supra At times, MacKinnon seems to understand this as well. In some arguments about pornography, she draws explicit parallels between the new anti-pornography ordinance and the now-recognized Title VII claim for sexual harassment, an analytic move which invokes both analogy and legal precedent. See, e.g., FU at 198.Google Scholar

32 With respect to sex equality, MacKinnon states, “The intent requirement would be eliminated. The state action requirement would weaken. No distinction would be made between nondiscrimination and affirmative action. Burdens of proof would presuppose inequality rather than equality as a factual backdrop and would be more substantively sensitive to the particularities of sex inequality.”Id. at 247. These are wonderful, concrete descriptions of an end state many feminists would support. But they are also descriptions of a legal terrain on which many battles have been recently fought and lost. How feminist lawyers, presumably the agents of change she describes, would surmount these barriers is never discussed.Google Scholar

33 For a richly textured account of, inter alia, the numerous complex choices facing those who would characterize a battered woman at trial, see Christine Littleton, “Women's Experience and the Problem of Transition: Perspectives on the Male Battering of Women,” 1989 U. Chi. L. F. 23; Martha Mahoney, “Legal Images of Battered Women: Redefining the Issue of Separation,” 89 Mich. L. Rev. (forthcoming 1991).Google Scholar

34 In fairness to MacKinnon, I should add that there is at least one public address during which I have heard her speak more responsively. On that occasion, MacKinnon addressed the question of whether Sports illustrated's Swimsuit issue would be considered pornography, and advised female students about what they could do to respond to the display of centerfolds in nearby student lockers. The difference that may exist between MacKinnon in person and in print (or in printed versions of public addresses) may provide support for Frances Olsen's thesis about the strategic uses of what I have called rigidity. See Olsen, 89 Col. L. Rev. (cited in note 20). It may be that when MacKinnon writes for a broad and unidentified audience, she is more insistent on setting boundaries and maintaining the uncompromised purity of her position than when she speaks to a particular audience whose tenor and attitudes she can better gauge.Google Scholar

35 See Olsen, 89 Col. L. Rev. at 1166–77.Google Scholar

36 By “perspectivity” I mean the quality of having been formulated from some identifiable, partial, human perspective. Liberal legal discourse does not often acknowledge this characteristic of legal rules, arguing instead that they are formulated from a neutral or objective position, which (depending on the account) maintains a clarifying distance from any identifiable perspective, or adequately comprehends all (relevant) perspectives, rather than partaking of any one.Google Scholar

37 See, e.g., Martha Minow, “The Supreme Court, 1986 Term—Foreword: Justice Engendered,” 101 Harv L Rev. 10 (1987); Schneider, et al., 10 Women's Rts. L. Rptr. (cited in note 2); Colker, 13 Harv. Women's L.J (cited in note 2).Google Scholar

38 See, e.g., Harris, 42 Stan. L. Rev. (cited in note 22); Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,” 1989 U. Chi. L.F. 139; Patricia Williams, “The Obliging Shell: Some Informal Comments on Formal Equal Opportunity,” 87 Mich. L. Rev. 2128 (1989). One of the most comprehensive and insightful articulations of this position may be found in Elizabeth V. Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought (Boston: Beacon Press, 1988). Spelman is not a lawyer but rather a philosopher who writes thoughtfully and provocatively about legal issues. For a different but not necessarily incompatible perspective on “anti–essentialism” in feminist legal thought, see Fineman, 42 Fla. L. Rev. (cited in note 1).Google Scholar

39 See Bartlett, 103 Harv. L. Rev., and Minow, 1989 U. Chi. L. F. (both cited in note 1); Mari Matsuda, “Pragmatism Modified and the False Consciousness Problem,” 63 S. Cai. L. Rev. 1763 (1990).Google Scholar

40 See sources cited in note 38.Google Scholar

41 One obvious consequence of this complex view of women's experience and gender discrimination is that the lawyers who hold it take a broader view of the clients and constituencies toward whom their efforts should be directed. They might describe their perspective or their legal methods as “feminist, but many of these lawyers employ their methods on behalf of groups not distinguished solely or even primarily by their gender. Mary Dunlap argues on behalf of gays and lesbians; Patricia Williams addresses issues of race and class; Martha Minow focuses on groups from special needs children to minority religions.Google Scholar

42 See Minow, 101 Harv. L Rev.; Minow“Feminist Reason, Getting It and Losing It,” 38 J. Legal Educ. 47 (1988).Google Scholar

43 One feature that distinguishes Minow's approach is that for her, feminism is deeply connected to what she describes as the “dilemma of difference” affecting a range of groups. Women are subordinated because men enjoy the power to make their own lives and views the norm—a perspective so dominant and pervasive as to appear to be no perspective at all—and to label women, who diverge, as “other.” In the same way, whites enjoy the power to make blacks “other” the able–bodied define and marginalize those with disabilities; heterosexuals generate norms and institutions that stigmatize lesbians and gay men. So long as the dominant groups maintain this pervasive power to define, the victims of discrimination are confronted with a perverse dilemma: both ignoring and calling attention to one's difference risks perpetuating the stigmatization. See Martha Minow, “Learning to Live with the Dilemma of Difference: Bilingual and Special Education,” 48 Law & Contemp. Prob. 157 (1985); Minow, 101 Harv. L. Rev.; Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (Ithaca NY: Cornell University Press, 1990).Google Scholar

44 106 S. Ct. 2841 (1986).Google Scholar

45 In Schneider et al., 10 Women's Rts. L. Rptr. at 122 (cited in note 2).Google Scholar

46 See Brief Amicus Curiae for American Jewish Congress et al., Webster v. Reproductive Health Services, 492 U.S. 490 (1989). Minow served as counsel of record for these groups and wrote the brief with Professor Avi Soifer of Boston University Law School.Google Scholar

47 This approach would seem to require a case in which at least two things are true:(1) the attorney represents multiple litigants, with interests and perspectives which are not identical; and (2) the litigants are capable of offering a clear articulation of the broader substantive commitments underlying their legal position. However, Minow does not appear to take a restrictive view of the legal contexts to which this approach might be applied. For example, she advocates interviewing individual clients who are members of victimized groups and integrating their statements in the appellate brief. She notes, for example, that this strategy was not but might profitably have been used to communicate the perspectives of high school students suffering censorship of their school paper in Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988). Telephone conversation with Martha Minow, June 22, 1989.Google Scholar

48 Some feminists and critical race scholars have argued that this kind of multiple, or “multivalent,” perspective may exist within the perceptions of individuals or ostensibly homogeneous groups, particularly those who may have experienced intersecting patterns of subordination, as well as among heterogeneous groups. See Mari Matsuda, “When the First Quail Calls: Multiple Consciousness as Jurisprudential Method,” 11 Women's Rts. L. Rptr. 7 (1989). These scholars have argued that this individual or internal form of multi-perspectivity can be used to shape legal rules or inform the thought processes of legal decision makers such as judges. See Williams, 87 Mich. L. Rev. at 2151 (cited in note 38). Although I find the use of multi-perspectivity in legal decision making and reconstruction a promising possibility, I think more work needs to be done elaborating the kinds of understandings or prescriptions that are likely to flow from this approach.Google Scholar

49 The following examples come from Schneider et al., 10 Women's Rts. L. Rptr. (cited in note 2), but other accounts of these and similar approaches can be found in Elizabeth Schneider, “The Dialectic of Rights and Politics: Perspectives from the Women's Movement,” 61 N. Y. U. L. Rev. 589 (1986); id., “Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering,” 9 Women's Rts. L. Rptr. 195 (1986).Google Scholar

50 Yvonne Wanrow was a Native American woman, impeded by an injured leg, whose act of violence was perpetrated in an attempt to protect her children from an intruding white man who she believed had previously threatened them. Schneider's own experience as a woman led her to fear that a conventionally instructed jury would not understand the factors that led Wanrow to perceive imminent danger, which included her gender-related sense of herself as physically vulnerable and the tension in her community between whites and Native Americans. Schneider was concerned that the jury would be more likely to see Wanrow's self-defense as “hysterical” or “emotional” than as reasonable. Schneider et al., 10 Women's Rts. L. Rptr., at 114–15.Google Scholar

51 Id. at 115–16. Schneider warns that a lawyer must resist the temptation to confuse her experiences with her client's, id. at 117. Yet she concludes that a common strand in a lawyer and client's experience, if the lawyer is willing to trust the intuition it provides, may materially improve the process of representation.Google Scholar

52 84 N.J. 305, 419 A.2d 406 (1980).Google Scholar

53 Schneider et al., 10 Women's Rts. L. Rptr., at 137–38.Google Scholar

54 Carol Gilligan, In a Different Voice (Cambridge, Mass.: Harvard University Press, 1982).Google Scholar

55 See FU at 39. With a characteristic mixture of appreciation, cynicism, and exasperation, MacKinnon states (id.): Women have done good things, and it is a good thing to affirm them. I think quilts are art. I think women have a history. I think we create culture. I also know that we have not only been excluded from making what has been considered art; our artifacts have been excluded from setting the standards by which art is art. Women have a history all right, but it is a history both of what was and of what was not allowed to be. So I am critical of affirming what we have been, which necessarily is what we have been permitted, as if it is women's, ours, possessive. As if equality, in spite of everything, already ineluctably exists.Google Scholar

56 The response of these feminists to MacKinnon's position is that even qualities born of oppression, so long as they are understood, may be used to reform male-structured environments. I have sometimes taken this position myself with respect to restructuring the workplace. See Kathryn Abrams, “Gender Discrimination and the Transformation of Workplace Norms,” 42 Vand. L. Rev. 1183 (1989). I am in this respect sympathetic to the view expressed by Simone deBeauvoir, who spoke of “feminine qualities which have their origin in our oppression but should be preserved after our liberation.” See Simone deBeauvoir, The Second Sex 153 (New York: Vintage Books, 1974).Google Scholar

57 See, e.g., Menkel-Meadow, Carrie, “Excluded Voices: New Voices in the Legal Profession Making New Voices in the Law,” Miami L. Rev. 42 29 (1987); id., “Portia in a Different Voice: Speculation on a Women's Lawyering Process,” 1 Berkeley Women's L.J. 39 (1985).Google Scholar

58 See White, Lucie, “Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G.,” Buff. L. Rev. 38 1 (1990) (explaining dilemma over whether to use estoppel claim, which permitted client more dignity but threatened to alienate hearing officer, or “life necessities” claim, which stood better chance of success but placed client in posture of supplication). White's analysis is mainly context-specific, and she primarily alerts lawyers to this tension in representing their clients, rather than advising them in general terms as to how to resolve it.Google Scholar

59 Colker, 13 Harv. Women's L. J. (cited in note 2).Google Scholar

60 Colker argues that dialogue is feminist in numerous respects: in its association with consciousness raising and in its capacity to illuminate difference, and in its accommodation of an ongoing effort to understand one's position in society. Id. at 143–44. To my mind, this does not so much establish that dialogue is feminist, as that dialogue, which Colker properly values for a variety of reasons, is consistent with certain feminist precepts.Google Scholar

61 See Schneider, 61 N. Y. U. L. Rev. (cited in note 49).Google Scholar

62 By examining the methodological consequences that issue when feminist lawyers begin from both of these premises, I do not mean to suggest that they are inevitably paired in the professional understandings of feminist lawyers. It is possible, for example, to have a more singular view of women's experience combined with a practical, adaptive approach to the reform of legal institutions. See, e.g., Menkel-Meadow,Berkeley Women's L.J. Google Scholar

63 See Littleton, “Women's Experience and the Problem of Transition: Perspective on the Male Battering of Women,” 1989 U. Chi. L.F. 23.Google Scholar

64 Littleton stakes out a position she identifies as falling between a “false consciousness” rejection of certain women's accounts and an uncritical, relativistic acceptance of all women's stories. She argues that we should view women's descriptions of their experiences as “accurate, reasonable and potentially understandable given the conditions under which we live.”Id. at 27. This view, which involves “a dialectic between our own descriptions of our varying experience and the conditions under which such descriptions are made” (id.), seems distinct from MacKinnon's contention that immersion in the material conditions of women's lives can produce only one account of women's experience. It bears closer relation to the epistemological “positionality” recently articulated by Katharine Bartlett, 103 Harv. L. Rev. at 880–88.Google Scholar

65 Littleton, 1989 U. Chi. L.F. at 54.Google Scholar

66 Id. at 53.Google Scholar

67 Id. at 55.Google Scholar

68 Id. at 56.Google Scholar

69 See Mahoney, Mich. L. Rev. (cited in note 33); see also White, 38 Buff. L. Rev. at 56.Google Scholar

70 See White, 38 Buff. L. Rev. at 6–19 (cited in note 58).Google Scholar

71 Id. at 55–57. For a fascinating theoretical exploration of how several assumptions of feminist theory might help us reconstruct procedural due process see Cynthia Farina, “Conceiving Due Process,”Yale J.L. & Feminism (1991, forthcoming).Google Scholar

72 Perhaps MacKinnon takes as her model the gradual education of the courts to the claim of sexual harassment, and she assumes that as society begins to understand her claim, judges will act accordingly.Google Scholar

73 See Minow, Martha & Spelman, Elizabeth V., “Passion for Justice,” Cardozo L. Rev. 10 37 (1988); Minow, 101 Harv. L. Rev. (cited in note 37).Google Scholar

74 See Minow & Spelman, 10 Cardozo L. Rev.; Minow, 101 Harv. L. Rev. These articles are part of a larger discussion among feminist jurisprudes about the value of objectivity in judging. See, e.g., Judith Resnik, “On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges,” 61 S. Cal L. Rev. 1877 (1988); Cain, Patricia, “Good and Bad Bias: A Comment on Feminist Theory and Judging,” S. Cal. L. Rev. 61 1945 (1988).Google Scholar

75 Minow, See, “Words and the Door to the Land of Change: Law, Language and Family Violence,” Vand. L. Rev. 43 1665 (1990).Google Scholar

76 Katharine Bartlett has written that to choose a legal method simply because it assures a particular result is to establish an “improper” relationship between substance and method, because it exerts no meaningful constraints on the decision maker. Bartlett, 103 Harv. L. Rev. at 846–47 (cited in note 1). Although this proposition doubtless requires more qualification when it is transported from the realm of legal theory to that of legal advocacy, I do not mean to suggest that feminist lawyers have selected these methods only because they win cases. Lawyers believe that they have merit because they invoke an experiential epistemology that encourages judges to consider their own humanity or that of the litigants before them. But the determinative factor in many cases is that the lawyer's use of a particular method will make a legal decision maker more likely to understand the lawyer's substantive point.Google Scholar

77 Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) (state statute providing for black students to attend out-of-state law school where no state law school serving blacks was available violated the Fourteenth Amendment).Google Scholar

78 Sweatt v. Painter, 339 U.S. 629 (1950) (decision denying black student admission to white law school violated Fourteenth Amendment, where separate black law school was not equal).Google Scholar

79 Brown v. Board of Education, 347 U.S. 483 (1954) (system of public education based on premise of “separate but equal” education for black students violates Fourteenth Amendment).Google Scholar

80 See, e.g., L. Nicholson, ed., Feminism/Postmodernism (New York: Routledge, 1990); L. Tribe, “The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics,” 103 Harv. L. Rev. 1 (1989); Rubin, A., “The Practice and Discourse of Legal Scholarship,” Mich. L. Rev. 86 1835 (1988).CrossRefGoogle Scholar

81 See Abrams, 42 Vand. L. Rev. at 1197–1209 (cited in note 56) (critiquing use of gender-neutral “reasonable person” standard in hostile environment sexual harassment cases).Google Scholar

82 A variant of this point is made by Jane Cohen, 25 Tulsa L. J. at 732–33 (cited in note 2).Google Scholar

83 Here I rely on an approach to evaluating the “truth” of feminist claims that resembles the “positionality” articulated by Katharine Bartlett, 103 Harv. L. Rev. at 880–87.Google Scholar

84 Certainty about optimal methods is bound to be elusive even in the long run because “advancing the goals of feminist legal change” is bound to be understood differently by different reformers, and some approaches are likely to succeed at some times and fail at others. However, sustained application of different innovations is likely to yield insights not evident from the outset, as has been the case with the proposal of relational feminists that alternative dispute resolution mechanisms might serve the interests of women in situations involving domestic violence. Sustained use and inquiry in this area seem to have yielded the insight that informal dispute resolution mechanisms, though responsive to important norms of relational feminism, raise a high risk of importing power inequalities, unmoderated by formal procedural protections, into the process of dispute resolution. See Lerman, Lisa, “Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women,” Harv. Women's L J. 7 57 (1984).Google Scholar