Ch. 4 Difference pp a/k/a “cultural feminism,” “relational feminism,” “ethic of care”
Contrasted with Other Theories Ch. 1 Formal Equality: to the extent men & women are similarly situated, should be treated the same. Primary focus of 2d wave, R.B. Ginsburg as litigator w/ ACLU Legal Rights of Women Project. EPC as primary focus. Ch. 2 Substantive Equality: where not similarly situated, provide remedies for past discrimination, recognize sex-linked average differences, outlaw pregnancy discrimination. Statutory remedies: Title VII, evolution of family law to provide substantive equality.
Contrasted with Other Theories Ch. 3 Nonsubordination – Leading theorists: MacKinnon, Abrams, Hébert, Schultz, Franke, Rhode – Issues: Actionable sexual harassment (Titles VII & IX), dealing with domestic violence, criminal law (rape, sexual assault, provocation, battered women’s syndrome), VAWA (up for renewal and under attack), pornography, sexual orientation discrimination, legal & social evolution on LGBT issues (federal & state DOMA’s, civil unions, domestic partnership benefits, same sex marriage, same sex parents, employment discrimination, public accommodations, gender & military)
VAWA: up for third reauthorization Controversy. NYT (March 14, 2012): divisive, election-year politics N.B. VAWA, ongoing controversy – US News & World 3/27: overwhelmingly negative reaction to VAWA! See violence-against-women-act-be-reauthorized
Difference Theory Embrace some of women’s differences as offering better model for law & social differences, i.e., Values of relationship, protection of vulnerable & contextual reasoning
A. Connection Thesis pp. 384, Carol Gilligan, In a Different Voice (1982): challenged Kohlberg’s model of moral development finding gendered differences at 11 years old, boys’ superior reasoning. Leslie Bender develops: Jake’s ladder(rule-based, rights model, apply abstract principles of justice to resolve disputes) Vs.Amy’s web (in particularized context, search for amicable resolution, to preserve relationships, achieve higher good through ethic of care)
Robin West pp “hedonic feminism”: give voice to women’s unique pleasures & pains, values & dangers, attractions and fears …. “ethic of care” By definition, women’s bodily functions “essentially connected” to life & other human beings (menstruation, potential for pregnancy, heterosexual penetration & possible pregnancy, post-pregnancy possibility of breast- feeding) “Rule of Law” ignores feminine values of connection, harms from invasion Agree/disagree? Critique? See Bender pp , N. pp (assumptions for “protective” labor laws)
Leslie Bender, Ethic of Care, Tort Primer pp , , 400 Acknowledges risks of replicating subordination, use with caution … rejects suggestion to de- gender, link to “liberal humanist values.” WHY? Gender-linked values of care, cooperation, interpersonal responsibility can improve legal analysis, benefit society. – E.g., tort law should recognize duty to act to protect or prevent harm to another ….when can be done w/o undue risk of harm or cost to self. Legal & policy implications? Future possibilities?
Mary Becker pp Relational feminism goal: enable all persons to find human fulfillment & happiness Target: over-valuation of masculine qualities (individualistic); under-valuation of feminine qualities (community & relationships)