“Many of our problems in US maternity care stem from the fact that we leave no room for recognizing when nature is smarter than we are.”
― Ina May Gaskin, Birth Matters: A Midwife’s Manifesta
“The United States was recently dubbed “the most dangerous place in the developed world to give birth.” Over seven hundred pregnant women or new mothers die in the United States each year. Infants are dying at an alarming rate as well. Our shockingly high and ever-increasing rate of maternal mortality, particularly among Black women, has garnered significant national attention. Further, many women experience mistreatment at the hands of their health care providers, including the imposition of unnecessary or unwanted medical interventions during birth. Aside from causing emotional and physical trauma, such interventions have been directly linked to increased maternal mortality.
“Erica Curtis, a former admissions evaluator at Brown University in the United States, has noted that she evaluated each student’s application consisting of standardised test scores, the transcript, the personal statement, and multiple supplemental essays within a twelve-minute timeframe.1 Arguably, this is a very short period of time within which an admissions officer can evaluate the applicant’s personality and academic qualities holistically.2 The time constraints create a possibility that the admissions officer may fail to detect the applicants’ capabilities or how societal barriers diminished their ability to realise their potential. Another concern with human decision-making is that the decision-maker officer may act arbitrarily in the course of exercising discretion3 by putting different weight on comparable attributes that cannot be measured.
“The societal frame of the “economically disadvantaged” is rooted in a distinction between a conceptual status of equality and the actuality of discrimination and disadvantage. This paradigm provides the governing logic for both criticism and justification of the status quo. This Article questions whether and to what extent this equality/antidiscrimination logic has lost its effectiveness as a critical tool and what, if anything, should be the foundation of the rationale that supplements or even replaces it.
The theme of this Article for the SMU Law Review Forum focuses us on the challenges faced by the “economically disadvantaged” in the past decade and in the future. This framing is rooted in a distinction between that conceptual status of equality and the actuality of discrimination and disadvantage. This is the lens through which contemporary legal culture tends to assess the nature and effect of existing laws and determines the necessary direction of reform. As such, this paradigm provides the governing logic for both criticism and justification of the status quo. It is rooted in an understanding of the significance of the human being and a belief in their fundamental parity under law that also asserts the inherent value of individual liberty and autonomy, and thus is skeptical of state intervention into the “private” sphere of life.
“Twenty-ﬁve years ago, shortly after my own successful, but nonetheless harrowing bid for tenure, I began the Feminism and Legal Theory Project (FLT) at the University of Wisconsin. The explicit purpose was to provide a supportive and encouraging environment for scholars interested in doing feminist theory work. Early workshop sessions were in the summers, often lasting a week or more. They were organized around topics or themes, such as differences and motherhood.
The women and men who came to those early sessions were searching for a way to reconcile growing critical and feminist sensibilities with the study and teaching of law as we had experienced it as students and beginning professors. A handful of Women and the Law courses had been created and were being taught at that time, but there were very few women law professors and the word “feminist” was fairly new to law schools.
“Since the late 1960s and with ever increasing momentum, law has come under the influence of economic theory and methodology. Although considered a specific school of thought within American legal jurisprudence, Law and Economics and the neoclassical economic model on which it is based, have permeated legal analysis in a wide range of areas, considered useful in the development of rules of universal application for law and policy making.
In response to the increasingly accepted notion that economic principles are and should be the primary lens through which legal and policy decisions are made, this volume was conceived in order to bring together essays that are critical of the Law and Economics school of thought, as well as of the neoclassical economic model more generally. The essays collected in this volume present a variety of legal and nonlegal perspectives and come from a variety of disciplines. All the authors are generally concerned with the implications of the wholesale incorporation of an economic model into law and policy making. Although there are many avenues through which one can form a critique of Law and Economics and neoclassical economics other than the critique developed out of an analysis of gender, the essays in this volume primarily bring feminist perspectives to bear on homo economicus, either rejecting economic analysis within the law altogether or, alternatively, using economic analysis in a manner that challenges the gendered power dynamic within the law.
“This collection of chapters investigates the ways in which emerging masculinities theories in law could inform feminist legal theory in particular and law in general. Masculinities theories generally explore relationships of subordination between different men and how those relationships rebound in the subordination of women. A central theme of masculinities studies has been the construction of idealized and societally praised forms of masculinity. In addition to devaluing women and ‘non-masculine’ men, such hegemonic modes of masculinity serve to create a general sense of anxiety among men as to whether they can live up to the hyper-gendered standards.
“This anthology focuses on the vigorous and sometimes contentious debates between and among feminist and queer legal theorists, bringing into direct dialogue many of the key players in this ongoing set of “uncomfortable conversations.” Many of the chapters speak directly to one another, debating not only important issues such as intimacy, privacy, sex harassment, and political strategy, but also the very conceptualization of feminism and queer theory. Cumulatively, the chapters pursue the shifting complexities and difficult questions feminist and queer legal theories consider as well as produce. This anthology also maps the different approaches to the concepts of sex and gender that have been articulated over the past decades by feminist and queer theorists. In particular, it explores evolving and contested assertions about the centrality of a positive theory of sexuality to the formulation of critical perspectives on legal, social, political, and cultural institutions.
“This book is the product of an increased interest in feminist scholarship as it relates to legal issues. Law is an area relatively untouched by the post-modern currents that have washed through other disciplines, but now appears to be caught within tides of critical methodologies and conclusions that threaten its very roots. This collection of papers was selected from a larger group presented over a four year period at sessions of the Feminism and Legal Theory Conference at the University of Wisconsin. They reveal that feminist legal theory represents both a subject and a methodology that are still in the process of being born. There are no “right” paths, clearly defined. This scholarship, however, can be described as sharing the objective of raising questions about women’s relationships to law and legal institutions. Continue reading At the Boundaries of Law: Feminism and Legal Theory
by Martha Albertson Fineman from “Vulnerability, the Responsive State, and the Role of Religion” by Martha Albertson Fineman and Silas W. Allard
“Recently, while reading an article titled “The Decline of Empathy and the Appeal of Right-Wing Politics,” I was struck by the relevance of the lessons gleaned from an experiment with mothers and infants, to figuring out how to foster a society that valued and practiced policies of social justice. In the experiment, mother and infant interactions were analyzed in two contrasting situations. Continue reading The “Still Face” of a Compassionately-Challenged Society