Joan Hoff, Law, Gender, and Injustice: A Legal History of U.S. Women, (1991)

Hoff offers a comprehensive history of women in the United States and their struggle for the full rights and protection under the law. She traces this history by using the theme that women are second-class citizens under the law. She argues that women have obtained rights on a “too little, too late” basis or what she coins the “broken barometer” of US legal history. Fundamentally, legal gains by women took too long to achieve. By the time these gains were realized or codified into law, they were addressing issues that had long since become moot.

Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship, (1998)

Kerber’s main organizing principle is that citizenship is defined not just by rights but also by the obligations expected of the individual in exchange for those rights. (xxi) As such, she looks beyond the question of the rights of citizenship and instead focuses on the obligations of citizenship as they were applied (or not) to women and uses this lens to explore women’s relationship to the state. As such, women appear to have had an advantage as American law has excused women from important but onerous civic duties that men were compelled to perform. Ultimately, she concludes, whatever advantages this gender-based exemption from civic duties appeared to have bestowed upon women have come with a price.  Kerber uses five important expectations of citizenship to explore this trade off–taxes, avoiding vagrancy, serving on juries, forced military service (the draft), and refraining from treason or loyalty to the state. She argues that the allegation that coverture shielded women from certain public burdens was likely to camouflage other practices that made them more vulnerable to other forms of public and private power. Diminished rights were the more lasting accompaniment of reduced civic obligations. Kerber concludes that the obligations of citizenship are themselves rights–the right to be acknowledged as a necessary part of the state and the right to participate in the exercise of the power of the state.

Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920 (2001)

Welke’s central focus is on the legal transformation of individual liberty. In so doing, Welke explores suits against the railroads and street car companies involving physical injury, nervous shock, and segregated rail cars as crucial to the transformation of attitudes toward liberty and freedom. Fundamentally, she is exploring the extent to which gendered assumptions shaped legal doctrine. She argues that the rapid proliferation of railroads and streetcars led to a rising toll of passenger injuries and deaths. The increased presence of female riders and the increasing volume of injuries inflicted by railroad travel resulted in women bringing a greater proportion (as compared to injured males) of the personal injury suits against the railroads. The dominant assumptions about the helplessness and passivity of women led judges and juries to show female claimants greater preference in injury settlements. The American preference for uniform laws and precedence meant that these gendered rulings thus affected all claimants.

For discussion:

– The main theme across these readings concerns how the  role of women’s protected status has played out in the legal system. Hoff clearly falls into the cultural feminist camp and believes that women should actually strive for more protection based on a shared experience of womanhood. Kerber’s book complicates this view tremendously by showing that the protections achieved for women (mostly under coverture) have done more harm to women than good. Welke argues that, in fact, it was this protected status (though not under coverture per se) that allowed women to actually influence the precedents on which our personal injury laws are based. Welke is clearly responding to the argument that women have had no role in shaping law in the United States. This central question of the value of special protection will undoubtedly shape the questions I have to ask of my project. Kerber’s complicated picture of the results of this and Welke’s effective application of race and class to illustrate gendered influence should prove valuable.

– Kerber’s organizational structure–she reserves a chapter for the full story of each of her five obligations–allows her to cover an immense amount of chronology and historical ground. I see this approach as a possible model of how to effectively combine synthesis with original research. However, in her vast narratives do we lose the grander sense of change or continuity over time across these themes? Also, I don’t have a good sense of which cases are missing from her study. Are there other cases that touch on these same issues, but don’t fit her mold?

– All these readings, to some extent, illustrate how external ideas shape the events and verdicts inside the courtroom. Kerber and Welke clearly show that preconceived notions about women did shape verdicts and outcomes. Hoff notes that while feminists may desire to remove damaging binaries from the study of history, doing so also removes an important contextual lens through which we can understand the legal culture and environment of the past. Thus, if these binaries did help to shape the court proceedings in chambers and behind closed doors, how does one use them without abusing them?

– I’m not sure I fully understand Kerber’s application of the ‘wages of gender.’ Is she arguing that women have played a double price for protection? Or only that they have not fully benefited from the protection given to them because that protection comes with a price? I may be over-complicating her meaning here. Or I’m asking the same question with different words.

– Welke’s focus on passengers precludes her from analyzing the injuries sustained by railroad employees, who would’ve been almost entirely male. Should we then assume that injury cases involving workers created a separate tract of precedence in the case law? What can we make of this split between consumers and workers?

– Lastly, the influence of federal law vs state law is a bit blurry in these books.  How does one manage the split between state and federal law in studies such as these?

To begin my readings on gender, society, and law in America, we’re going to use the first week to ground the rest of the list using works of feminist theory.

Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (2nd ed),

Through her specific focus on Black feminist thought, Collins actually provides a nice framework through which we can view power relations in general and how they function in society. By shifting the paradigm of oppression, she fundamentally changes how we think about oppressive forces such as race, class, and gender. She rejects the additive approach and instead she argues that race, gender, and class form a system of interlocking oppression and together with sexuality, ethnicity, nation, and religion form an overarching structure of domination—what she calls the “matrix of domination.” (20-21) She moves the discussion away from descriptions of these individual types of oppression and focuses attention instead on how they interoperate to produce injustice.

She explores the intersections of oppression for Black women in the United States by exploring four powerful, controlling images of black women—the mammy figure, the matriarch, the welfare queen, and the Jezebel. Through these images, Black women are objectified as an Other, which provides an ideological justification for their oppression. In this way the Black Other, in whatever form, as she exists on the margins, actually clarifies the boundaries of society by defining the center. The Other stands in binary opposition to the “Norm.” Her discussion of the power dynamic inherent in heterosexuality as it intersects with race and gender is powerful and provides a nice illustration as to how the “matrix” capitalizes on binary thinking to function in society.

She delineates two interdependent dimensions of heterosexism—the symbolic and the structural. The symbolic refers to the sexual meanings used to represent and evaluate Black women’s sexuality (ie, the Jezebel or  hypersexual Black “freak” in opposition to the pure White woman). The structural dimension encompasses how social institutions are organized to reproduce the hegemonic “Norm” of heterosexism, particularly through law and social custom. Much as the Black Other stands in opposition to the White subject, heterosexuality as an ideology is embedded in binary thinking that casts all other sexualities as deviant. In this way, deviance is socially and legally constructed as existing outside whatever norm is useful. In discussing the specific objectification of sexuality, she adds Madonna/whore, real woman/dyke, real man/fag, stud/sissy to the typical binaries of white/black, man/woman, masculine/feminine. She argues these sexual binaries in turn receive justification via medial theories (normal/sick), religious beliefs (saved/sinner), and state regulation (legal/illegal) (140)

Nancy Levit and Robert R.M. Verchick, Feminist Legal Theory: A Primer.

Levit & Verchick address the ways in which anti-female norms and images are expressed in the law by focusing on how feminist theorists and activists have worked to change them. They outline the major camps of feminist legal theory—Equal Treatment, Cultural Feminism, Dominance Theory, Critical Race, Lesbian Feminism, Ecofeminism, Pragmatic Feminism, and Postmodern Feminism—and the tools with which these activists fight oppression inside legal doctrine. They argue that despite their differences, all feminist theorists view the world as shaped by white men who control larger shares of power and privilege. Because men originally wrote all the laws, those who did not fit their norm were silenced. Additionally all feminist legal theorists agree that men and women should have political, social, and economic equality; they disagree on the meaning of equality and how to achieve it. (15)

Feminists, they argue, regardless of their position, attempt to battle discrimination using three major tools: unmasking patriarchy, wherein they expose the often-subtle gender-based consequences of the laws; contextual reasoning, wherein they seek to understand the full context of the situation; and consciousness raising, wherein they alert others to these subtleties and form cohesive groups to oppose them. They provide an excellent chapter-by-chapter overview of the hot-button items within feminist legal theory such as workplace discrimination, schooling and organized sports, laws affecting the female body, marriage and family, sex and violence, and global issues such as sex trafficking and genital mutilation.

By reading Levit & Verchick with Collins, the intersecting forces of oppression and unintended consequences of the law become more obvious. For example, Levit & Verchick’s discussion of Title VII of the Civil Rights Act of 1964 exposes how actually bringing suit under Title VII requires a woman to identify her “primary” discrimination as sex-based or race-based. By forcing one over the other, intersecting modes of discrimination are ignored in anti-discrimination cases, resulting in fewer women of color bringing suits. Similarly, in domestic violence situations, a battered lesbian woman conceivably might not escape her attacker, as neither women’s shelters nor the law recognize that women might need to be protected from other women. Fundamentally, Levit & Verchick attempt to expose the power dynamics inherent in our legal system, the consequences for women, and how activists have attempted to “correct” the unintended effects on women.

Joan Scott argued in “Gender: A Useful Category of Historical Analysis,” that any system of power must work to sustain itself through binary symbols because its very power is not unified, coherent or centralized and thus must constantly remake itself through objectifying the subordinate. She understands power by way of Foucault who sees it “as dispersed constellations of unequal relationships, discursively constituted in social ‘fields of force.'” (1067) Scott’s analysis focuses on the culturally available symbols that evoke complex and often contradictory representations of women—Eve/Mary, Madonna/whore, innocents/deviants.

For Scott, and I’d argue that for Collins as well, the important questions scholars can ask about how symbols work within a matrix of domination are those that seek to understand which symbolic representations are invoked, how and when they’re used. These symbols are interpreted through a set of normative behaviors and appear in  legal, medical, and political doctrines (among others) that have serious ramifications for women who must enter the legal/courts system. As such, I’m looking forward to exploring how (if) scholars address these symbols in our upcoming readings.