A number of topics from such traditional
law school courses as employment law, family law, criminal law
and constitutional law are thought to have special relevance to
women. Studying these topics within their conventional
legal categories can provide systematic coverage of those
substantive areas of law most central to women's lives. At
the same time, however, such an approach risks (unnecessarily. .
.) Reinforcing some questionable assumptions about the
relationship between law and gender. Among those
questionable assumptions are:
(1) that sex discrimination law can
be sliced off from the larger fields of law of which it is but
one of many parts,
(2) that once removed and consolidated, the
parts form a coherent body of law worthy of separate academic
study, and
(3) that the salient categories in that body of law
are the different spheres of women's life to which law is
(separately) applied, that is the workplace, the family, the jury
box, public benefits, and the like.
The insights of feminist legal theory over the past
decade pose an implicit challenge to a cut and paste approach to
the field of sex-based discrimination, offering a series of
perspectives for rethinking the part law plays in maintaining a
gendered society that transcend conventional legal categories.
[The organization of this course] into these perspectives
reflects [the belief] that they are what make gender and law an
academic subject especially worthy of a separate course of study.
The perspectives represented [in this course] are not
clearly distinct from one another nor are they fully formed or
complete ("total") theories of law and gender.
Rather, they draw from and play off each other. The field
is still in a healthy stage of ferment and is changing even as
these word go to print. . . . [The course is divided into] six
categories that capture more or less distinct theoretical and
aspirational frameworks: formal equality, substantive equality,
non-subordination (or dominance theory), woman's different
voice(s), autonomy, and non-essentialism.
[Each perspective is examined] using cases and readings from a
cross-section of legal materials. . .[The casebook] includes a
good deal of Title VII law in the chapter on formal equality. . .
[E]mployment law cases [are used] to examine issues in
other chapters as well. Similarly, [the book covers]
standard "women's" subjects in family law, employment
law, and reproductive rights, [as well as] . . .areas as diverse
as civil procedure, legal ethics, bankruptcy, and welfare law.
[There are a] . . . few principles. . .[that guide this
course]. [The progress of the course]. . is for the most part
cumulative. For example, [you] must understand the
principles of formal equality before fully appreciating the
impulse toward, and potential limitations of, substantive
equality; similarly, knowledge of both formal and substantive
equality is a prerequisite to a firm grasp of the concepts
incorporated in the non-subordination approach.
[The course] is also interactive. . . [In the course,
you will be] asked to consider questions for which later
materials may give fuller answers, and as [the course]
progresses, [you are] asked to return to questions previously
examined under an earlier perspective. In this sense, [the
course] is an ongoing unraveling and re-weaving of interconnected
designs, rather than a straight-seamed assembly of a single,
finished fabric.
The approach of this [course] will work best if [you]. .
attempts to be both open to, and critical of, each approach
studied. . . .[There is] significant value and serious
limitations of the perspectives presented [in this course]. . .
.[You should] join in the creative effort begun in . . . [the]
course materials to formulate an approach or approaches that
offer the greatest potential for constructive social change.
Toward this end, [you are encouraged to disagree] with whichever
. . preferences. . [surfaces in the course]. On the other
hand, . . . the search for the best approach--an enterprise that
usually emphasizes distinctions and contrasts--does not blind
[you] to the overlap and similarities between the various
perspectives offered. If social progress is to be made with
respect to gender issues, it seem unlikely that this will occur
as a consequence of one perspective "winning out" over
another. A fuller understanding, and at least partial
acceptance, of numerous perspectives on law and gender is the
most promising precondition for meaningful reform. . . . |