Formative Projects, Formative Influences: of Martha Albertson Fineman and Feminist, Liberal, and Vulnerable Subjects

• Publication year: 2018

Formative Projects, Formative Influences: Of Martha Albertson Fineman and Feminist, Liberal, and Vulnerable Subjects

Linda C. McClain

FORMATIVE PROJECTS, FORMATIVE INFLUENCES: OF MARTHA ALBERTSON FINEMAN AND FEMINIST, LIBERAL, AND VULNERABLE SUBJECTS

Linda C. McClain^*

Introduction

Martha Albertson Fineman is a truly generative scholar. She generates significant and transformative scholarship, causing people to think in new ways about keywords like "dependency," "autonomy," and "vulnerability," and basic institutions such as family and state. She also generates conversations (uncomfortable¹ and otherwise, crossing disciplinary and other boundaries) and, in so doing, sparks the generation of new scholarship by others, through her founding and directing of (since the 1980s) the Feminism and Legal Theory (FLT) Project and (in the last decade) the Vulnerability and the Human Condition Initiative. I count myself among those who have benefitted from both forms of her generativity.² It is fitting and timely that the editors of Emory Law Journal honor her with this tribute issue. I am grateful for the opportunity to contribute to it.

This Essay reflects on Professor Fineman's generative scholarship by revisiting my engagement with her work over the years. Such revisiting is, in a sense, an intellectual autobiography, since I trace the shifting areas of concern in my scholarship and the role of various formative influences upon it. Often those influences were in evident, but productive, tension, such as with feminism and liberalism. In this revisiting, I also observe some critical shifts in Fineman's own scholarly projects, such as from dependency to vulnerability and from a gender lens to a skepticism about a focus on identities. Another formative influence I discuss in this Essay is Fineman's enormously generative contribution to the development of scholarship by creating spaces for sharing

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and critiquing scholarship, through the FLT Project and, more recently, the Vulnerability and the Human Condition Initiative.

I. Feminist and Liberal Formative Influences

A. The Geography of Influence

When I began my career as a law professor, I lived on the Upper West Side of Manhattan, equidistant (more or less) from two law schools—Columbia University and N.Y.U. That geographical positioning had both practical and symbolic significance. In the 1990s, my initial work as a feminist legal scholar argued for the merits of liberal feminism, despite pervasive feminist critiques of liberal legal and political theory and liberalism. In my first law review article, I argued that prominent strands of feminist jurisprudence presented a caricatured picture of liberalism as "exalt[ing] rights over responsibilities, separateness over connection," justice over care, "and the individual over the community."³ I focused particularly on relational feminism, or "difference feminism," often inspired by Carol Gilligan's In A Different Voice and articulated by such feminist legal scholars as Robin West and Suzanne Sherry.⁴ Challenging the model of "atomistic man" attributed to liberalism and feminist critiques of such liberal ideals as autonomy, I examined the liberal theories of political philosopher John Rawls and legal philosopher Ronald Dworkin to illustrate common ground between liberal theory and relational feminist theory around issues like the relationship between justice and care.⁵ Alongside those efforts to show affinities in bodies of "grand theory," my early work also focused on concrete issues like privacy rights, reproductive rights and responsibilities, and welfare reform.⁶

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Two significant spaces in which I wrestled with these tensions between feminism and liberalism were Professor Fineman's FLT Project, newly relocated to Columbia University,⁷ and the Colloquium on Law, Philosophy, and Political Theory (the Colloquium), convened by legal philosopher Ronald Dworkin and philosopher Thomas Nagel at N.Y.U. As an LL.M. student at N.Y.U. I took that Colloquium, which provided the chance to deepen my understanding of liberal political and legal theory and to wrestle with bringing feminist perspectives to bear on such theory. As a new professor, I continued to attend the Colloquium and enjoyed the intellectual community it afforded. On the recommendation of Professor Sylvia Law, I first met Professor Fineman while I was a student at N.Y.U.⁸ At our first meeting, Martha listened patiently to some of my embryonic ideas for future scholarly articles, and generously invited me to participate in FLT Project workshops and conferences.

Both of those spaces—the FLT Project and the Colloquium—nurtured my development as I attempted to elaborate my own liberal feminist approach. The first academic conference in which I presented my work as a new law professor was Professor Fineman's FLT workshop "Reproductive Issues in a Post-Roe World,"⁹ which, coincidentally, was also the first FLT Project workshop held under the auspices of the project's new home at Columbia University. That workshop, held in November 1991, took place in the wake of the U.S. Supreme Court's recent upholding of new restrictions on abortion (in Webster v. Reproductive Health Services) and as the Court considered (in what became Planned Parenthood of Southern Pennsylvania v. Casey) a fresh set of state restrictions challenging Roe's framework.¹⁰

The workshop exemplified several remarkable features of the FLT Project and why participating in such workshops was so exciting and valuable. First, the topic itself was timely and, as Professor Fineman explained, "urgent," in light of "the changing political shape of the United States Supreme Court."¹¹ Second, the workshop defined "reproductive issues" broadly, looking not only at the immediate issue of abortion rights but also at issues such as the impact of

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assisted reproductive technology on women and the regulation of midwifery.¹² Third, in both the selection of papers and presenters and in its attendees, the workshop crossed disciplinary, global, and generational lines.¹³ Feminist lawyers and scholars involved in Roe and other reproductive rights efforts shared their insights with new feminist scholars. Fourth, the valuable conversations the workshop generated took place not only in the formal context of presenting and commenting on papers but also during breaks, lunches, and dinner. Further, as would often be the case in years to come, that workshop generated published scholarship: in this instance, a symposium in the newly formed Columbia Journal of Gender and Law. In this way, Professor Fineman's FLT Project inspired law students and engaged them in the production of feminist legal scholarship, while also facilitating the feminist scholarship itself.¹⁴ For example, being included as a paper presenter allowed me to turn a seminar paper written at N.Y.U.¹⁵ into a law review article (The Poverty of Privacy?) that argued for the continuing importance of the right to privacy in a "revised Roe" world, critiqued the near-disappearance of privacy in the joint opinion of Planned Parenthood of Southern Pennsylvania v. Casey, and cautioned about some of the risks—in light of this disappearance and Casey's vision of women's decision making—of feminist calls to focus more on responsibility than on privacy and rights in justifying reproductive freedom.¹⁶

In the ensuing years, sharing my work in the FLT Project's various workshops and conferences provided regular occasions for constructive engagement and critique. Even when I was not presenting work, attending these events provided the pleasure of feminist companionship and of learning from an ever-expanding circle of scholars from different disciplines—and countries—tackling a wide range of issues. Professor Fineman also tackled—and sought to make accessible to us—methods and forms of discourse often seen as in tension with feminist inquiry or goals. For example, she convened more than one FLT Project event to focus on the prominent influence of economic theory and methodology in law ("law and economics") and to consider feminist criticisms

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and responses, including enlisting economic concepts and rhetoric to feminist ends. That critical engagement resulted in an interdisciplinary edited volume, Feminism Confronts Homo Economicus, to which I was fortunate to contribute.¹⁷ Similarly, some years later, Professor Fineman convened an illuminating "Uncomfortable Conversation" about the increasing prominence of sociobiology and evolutionary psychology (sometimes enlisted to explain sex inequality and women's and men's different choices), and feminist legal theory's engagement with such approaches.¹⁸ These are just a few examples of the way that Professor Fineman encouraged feminist legal scholars to confront and engage with different forms of discourse. Over the years, it was my pleasure to contribute to some of the edited volumes that Professor Fineman produced as the fruit of many of those workshops and uncomfortable conversations at Columbia and, subsequently, Cornell Law School and Emory University School of Law.¹⁹

As I traveled between the FLT Project and the Colloquium, however, I often experienced a sense of cognitive dissonance as I confronted the tensions between the distinct theoretical conversations and preoccupations of the two communities. In the Colloquium, as liberal luminaries presented works in progress in liberal political or constitutional theory, it often fell to feminist voices in the room to raise "the woman question" or to ask how gender mattered to the problem with which the author grappled.²⁰ I found myself, for example, introducing relevant feminist perspectives and scholarship to liberal theorists.²¹

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At FLT Project workshops and conferences, feminist presenters often delivered critiques of liberalism—and sometimes liberal feminism—that stung but also challenged me to formulate a response. Even so, as I continued to...