Sex Discrimination and the Law: History, Practice, and Theory, 2d ed.

• Author: Littleton, Christine A.

Second Edition. By Barbara Allen Babcok, Ann E. Freedman, Susan Deller Ross, Wendy Webster Williams, Rhonda Copelon, Deborah L. Rhode, and Nadine Taub. Boston: Little, Brown & Co. 1996. Pp. lxiv, 1514. $60.

INTRODUCTION

This book review has threatened to jump the tracks at every turn. This is hardly the fault of the editors of the Michigan Law Review. What they requested seemed, to both them and me, quite straightforward at first: a review of "women and the law" casebooks (or at least the major ones).(1) However, things are rarely as straightforward as they seem. Indeed, the quotation marks around "women and the law" should have alerted us from the beginning. Rather than providing a description -- of a course or even of a field of study -- the phrase "women and the law" evokes the debates, discussions, and dialogues that have marked the last two decades of feminist activism in the legal academy.

First, then, what is it that we teach when we teach in the area of women and the law? Only after answering this preliminary question (at least to my tentative satisfaction) can I even start to think about what materials we might like to use. Along the way, of course, my attention is drawn to other clusters of questions as well: (1) Who are our students? What do they want? What do they think they will get? What do they get? (2) What is the status of our courses? our work? ourselves? Don't worry, I'm not going to attempt to answer all of these questions. Do worry; they pop up like mushrooms in the middle of every page of this book review.

1. "WOMEN AND THE LAW"

   The 1995-96 edition of the American Association of Law Schools' Directory of Law Teachers(2) listed twenty law professors as having taught courses on women and the law for over ten years.(3) Twice that many have done so for six to ten years. The explosion, however, occurs within the "One to Five Years" category, with over 150 names. Not only are many more schools offering courses or seminars that faculty who teach them identify as women and the law, but there are also striking changes in the composition of the pool. Although the "Over Ten Years" category contains some highly respected schools -- for example, Georgetown, Chicago, and UCLA -- Harvard, Yale, and Stanford do not make appearances until "Six to Ten Years." Additionally, while the ratio of females to males remains close to 20:1 for the two longer-term categories, it shifts to 12:1 for "One to Five Years." Finally, while only one-third of the individuals in the "Over Ten Years" category indicate that they teach a seminar, over half of those in shorter-term categories are teaching seminars rather than survey courses.(4)

   These numbers raise some interesting questions -- most of which are, of course, beyond the scope of this book review.(5) For example, is the rate of increase more attributable to faculty supply or student demand? How many schools are offering articulated programs in the field, building from survey to specialized seminar, as opposed to one course or seminar every few years?(6) Do the numbers indicate growth and depth in the area, or fragmentation, assimilation, or even co-optation?(7)

   One thing is clear, at least from the anecdotal evidence: we teach very different things when we teach something called `women and the law."(8) Various related hypotheses are not so clear. For example, do most instructors believe, as I do, that courses (or texts) entitled "Women and the Law," "Gender and the Law," "Feminist Jurisprudence," "Feminist Legal Theory," and "Sex-Based Discrimination" raise very different expectations and flag separate sets of goals and perspectives, whether or not they share some primary and secondary reading materials? Just as the field of "women's studies" contains programs called not only "Women's Studies," but also "Feminist Studies," "Gender Studies," or even "Women and Men in Society,"(9) feminist legal scholars and teachers have largely agreed to disagree on the precise contours of the field. We tend to err on the side of inclusion when the inevitable questions are raised about whether a seminar on rape law or on "gender and rationality" should be seen as part of the women and the law curriculum. But that does not mean that there is consensus on a "canon" of either cases or commentary beyond a handful of landmark Supreme Court cases on equal protection and abortion.(10)

   In fact, the rapid increase in interest in the area of women and the law, coupled with reluctance to engage in line-drawing, has predictably resulted in some lost opportunities to consolidate gains and build on strengths. The giddy enthusiasm of the 1980s when feminist jurisprudence was the or at least one of the cutting-edge trends in legal scholarship and curricular reform(11) has ebbed. There are signs that it is time, and past time, to reassess.

   Many feminist law professors who came into the academy in the 1970s saw themselves as bringing a distinct set of perspectives and experiences to bear on the whole arena of legal education. Grace Blumberg has recently reminded us that there were early indications of alternative visions of what women and the law could mean:

   Some twenty-five years ago, a pioneering legal scholar, reflecting on

   the already isolated position in the law school curriculum of Women

   and the Law, as the fledgling survey course was then called, proposed

   an alternative vision. In 1972, Ruth Bader Ginsburg convened at

   New York University Law School a two-day conference entitled The

   Law School Curriculum and the Legal Rights of Women, which was

   sponsored by the American Association of Law Schools. She organized

   panels by traditional curricular disciplines-constitutional law.

   property law, family law, tax law, labor law, and so on. She invited

   the leading and nascent scholars of the day, men and women, to participate

   in panels that would begin the process of reconceptualizing all

   subjects to include women's issues and to reflect women's concerns.(12)

   Blumberg views this vision as the path not taken. While acknowledging this vision's "effect on the teaching of both men and women professors in the standard law school curriculum," she claims such "mainstreaming . . . has largely been neglected, if not abandoned, in legal academe, particularly in the more prestigious institutions, both by the academy itself and by many of those who purport to speak for women in the academy."(13) I am afraid I must agree with this description, although she and I differ somewhat on both how to apportion responsibility and what the costs and benefits are of the current situation. As one of "those who purport to speak for women," both in and outside the academy, I may be slightly defensive. Yet I would emphasize two points: (1) much of the scholarship and teaching that has come out of the marginalized area of feminist legal theory and jurisprudence has been powerful and important in its own right, and (2) it need be neither repudiated nor abandoned in order to pursue the mainstreaming project.

   Of course, my idiosyncratic blend of realism about the limits of what law schools and legal academics have accomplished thus far. along with optimism about their potential for the future, grows out of my own experience. I have admittedly been reluctant to settle down" to either a single-minded pursuit of theory or an all-out effort to reform the academy. Indeed, I have even refused to settle in the law school: I spent three years directing the undergraduate Women's Studies Program at UCLA and have taught in that program regularly. In addition, like many of my colleagues, I have been actively engaged in litigation, public education, and advocacy on behalf of both women's issues and individual women. It seems to me that the task we set for ourselves as feminist legal scholars and teachers has been at least dual: (1) to build a jurisprudence, a concomitant set of theories, and bodies of legal knowledge where none had existed; and (2) to challenge and change the scholarly and pedagogical system we "inherited."

   The implications of this dual model for scholarship I have visited elsewhere, albeit briefly.

   The underlying pragmatism of feminist jurisprudence develops

   from the requirements of good feminist methodology and theory.

   Feminists cannot ignore the concrete experience of women: it is the

   foundation of both feminist theory and practice. And theory that

   does not work in practice is bad theory. Thus, in its attempt to

   achieve the elusive goal of "praxis," feminist jurisprudence plays both

   ends, not to find a middle, but to expand the repertoire of

   resistance.(14)

   What is called for here is some explication of such a dual model's implications for legal education, and most particularly for the law school curriculum.

   Now that so many law schools have some offering in the women and the law area, it behooves us to ask whether that suffices for the ambitious task of integrating women's perspectives into the law school curriculum. As a start, a survey course in women and the law seems to me to be a necessary, but hardly sufficient, component of what should be seen as a course of education rather than just a course. Like any survey course, it must serve two different student populations: those for whom this is the only opportunity to think systematically about women and the law and those for whom it is an introduction into a field they themselves will occupy, either peripherally or centrally. Both groups must be equipped to continue thinking from a critical, feminist perspective as they encounter both traditional and nontraditional courses where women and women's issues have been defined as irrelevant or marginal. In addition, however, law schools should be pushed to offer more specialized courses as well, so that the survey leads to real opportunities for legal practice and scholarship. A course in feminist legal theory introduces students into the wealth of scholarship that stands as their inheritance. Seminars in particular...