Reflections on Law & Rights for Women

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?