Hodge, Jr. W ithout question significant access to guns and ammunition implicates major public health risks. There were 33, gun-related deaths and tens of thousands more injuries in the US in , far more than in other industrialized countries whose citizens lack similar ease of access to guns. Even though the Second Amendment of the US Constitution firmly protects the rights of Americans to own and use guns, all is not lost from the public health perspective. Firearm deaths and injuries can be prevented through efficacious gun safety and control laws and practical interventions e.
Feminist Theory And The Law - Oxford Handbooks
These and other measures can lower gun-related tragedies, especially among minors. Of course, not everyone is aware or convinced of the need for these common sense interventions. For years, the American Medical Association and other medical and public health associations have strongly counseled doctors and other health care workers HCWs to engage patients about the risk of gun-related injuries and safety measures.
However, in Wollschlaeger v. FOPA includes four primary sections:. Violations can lead to disciplinary actions against HCWs including fines, practice restrictions, return of medical fees, probation and license suspension or revocation. In so doing, we have adopted the vocabulary, as well as the epistemology and political theory, of the law as it is.
Scales , This approach to law p. Some scholars have concluded that modern equal protection doctrine on sexual equality has benefited men at least as much as women; for example, by requiring gender-neutral spousal support laws Orr v. Orr but permitting interpretations of divorce and child custody law that disadvantage ex-wives Baer , ch.
The problem here is not so much that men are dominant and women subordinate, as that reality is gendered. This generalization, of course, is a restatement of the second premise of feminist jurisprudence that I have identified. Feminist jurists who accept this premise differ widely in their explanations of how and why reality is gendered. These two observations have scant analytical value without connections between them.
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Making these connections became the first major project of feminist jurisprudence. There have been two overlapping versions of this discourse. Wendy Williams ; —5 ;  and Ruth Bader Ginsburg advocated across-the-board gender equality with no special treatment for women. Some feminist legal scholars regard male supremacist laws as anomalies within an essentially gender-neutral system. Scholars like Williams and Strossen comprise a distinct but vocal minority among feminist legal scholars.
Williams These responses to prevailing legal doctrines are among many feminist critiques of legal principles that feminist jurists have produced. Participants in this discourse use various labels for the two schools of thought, but the labels establish similar dichotomies. Difference feminism has been heavily influenced by the pathbreaking work of psychologist Carol Gilligan.
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The association of justice with men and care with women resonates with the observable reality that, other things being equal, women perform more caring activity than men do. The notion of a female ethic of care and nurturance may also appeal to those who share the belief of some nineteenth-century feminists that women are morally superior to men. Finally, the possibility of incorporating care into the concept of justice appeals to many feminist jurists who remain reluctant to associate care with women Behuniak However, difference feminism and its focus on care have met with pervasive and persuasive criticism.
While the experiences West mentions are unique to women, they are not common to all women; nor does she explain how these experiences connect women to people who are not connected to them. Feminist theorists have made no better case for gender differences than did pre-feminist or outright antifeminist theorists.
Oregon , to gain universal feminist acceptance. West does not exaggerate or distort. Radical feminism accepts the premise of the Seneca Falls delegates that men designed the legal system to establish, or at least to preserve, male power. Her extreme position has provoked considerable feminist criticism. But the fact that a position is extreme does not prove it wrong. The evidence MacKinnon advances to support her thesis includes the fact that the Supreme Court recognized rights to birth control and abortion years before it invalidated fetal protection policies barring women from well-paying blue collar jobs , , As we shall see, criticism has not persuaded MacKinnon to moderate either tone or content MacKinnon; ; ; Jeffries Since most women have greater domestic responsibilities, devoting more time and energy to care for households and dependents than do men, women are less likely to fit the description of the ideal worker The difference versus dominance controversy continues in the face of—and in response to—the extensive and trenchant criticism both schools of thought have received.
Ironically, feminist jurisprudence has received extensive criticism for doing what it criticizes conventional scholarship for doing. Harris maintains that race is a central component of the identities of women of color in Europe and North America, at least , but not of white women.
The same is true of the difference debate in its various manifestations. No one is forced to take sides, and many scholars choose to concentrate on other issues. The feminist premise of male bias applies as much to methods as to theories. Feminist critiques of method from the humanities and social sciences have influenced legal scholarship. These critiques have characterized conventional methodology as dichotomous, oppositional, hierarchical, abstract, reason-based, and emphasizing separation. Consciousness raising is inductive, not deductive. Many members of the founding generation of feminist theory participated in these groups.
Feminist jurisprudence has applied the insights of feminist epistemology to the study of legal methods. A study of law students at an Ivy League university discovered that women tended to do less well than comparable men and theorized that the Socratic method of law school teaching is an ordeal for many women Guinier et al.
They do not stand up when applied to concrete, particular analysis of everyday legal decision-making. Consciousness raising combines inductive and deductive reasoning. The different versions of the process that developed encouraged participants to use concepts from feminist theory in interpreting their shared experiences. The case for a distinctively p. But feminist epistemology has had significant impact on theory and jurisprudence.
Scholars have shown remarkable creativity in devising woman-oriented alternative theories. Twenty-first-century legal doctrine shows the influence of feminist inquiry, although the nexus between cause and effect is neither clear nor simple. Some feminist contributions to legal theory have yet to be put into practice, but others have gained judicial recognition.
Since a single article cannot present all of this scholarship, this chapter will focus on three important and controversial innovations. The gradual progression of American family law in the nineteenth and twentieth centuries from traditional male supremacy toward gender-neutrality coincided with, reinforced, and was reinforced by feminism.
Fineman perceives a connection between this legal undervaluing of the mother—child bond and widespread though decreasing public hostility toward single and lesbian mothers. Fineman proposes abolishing marriage as a legal category and replacing sex with care and dependency as the crucial family bond. The caregiving family would … be entitled to special, preferred treatment p.
While the caregivers could be either women or men, the result of such a change would benefit many women and might even encourage caregiving behavior among men. It would also derail the controversy over same-sex marriage. The radical transformation in the law of sexual assault in the past thirty years represents a landmark victory for second-stage feminism.
She thinks consent in rape cases should be irrelevant. Women are so unfree that even if a woman is shown to have given consent to sex, that should never be enough to secure an acquittal. Jeffries To be at fault is to fail to act as a reasonable person would in the same situation. Kim Lane Scheppele insists that in many situations the reasonable person is in effect the reasonable man. Scheppele discusses the case of a man who got a ride home with a woman he had just met. He invited her to his apartment and snatched her car keys; she followed him because she feared being out on the street in an unfamiliar neighborhood.
After much disagreement within the state appellate courts, the Maryland Supreme Court finally upheld the conviction State v. Rusk Vinson The law recognizes two types of sexual harassment. The typical sexual harassment plaintiff is female; the typical defendant is male. A defendant who pursues a co-worker after she has rebuffed him may well believe that his behavior is reasonable; after all, he is acting out the plot of countless works of fiction, drama, and comedy, and may even have seen this courtship technique work in real life.
A defendant who tells dirty jokes or makes suggestive remarks may argue that the woman who complains about this behavior is unreasonably sensitive. Brady , The reasonable woman doctrine is not without its defects and dangers. First, the concept conflates gender and role. As women gain power in the workplace, it is likely that some of them, like some men, will abuse their power.
Asking what a reasonable woman might do will only confuse matters if aggressor and victim are the same sex Oncale v Sundowner Offshore Services A second difficulty with a reasonable woman rule is that it could do real damage if applied in areas of law that are not overtly gender-sensitive. A jury in a negligence case, for example, might expect more caution and foresight from a p.
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The concept of the reasonable person has found yet another home in the area of domestic violence. Elizabeth Schneider points out that legal discourse has long been stuck on the question of why the battered women did not end the abusive relationship. Feminist scholars have had much success in changing this official behavior. Walker argued that long-term abuse taught many women that they were helpless to change their situation. But the battered woman syndrome defense has won some acquittals in trials of women who kill their abusers, even though it applies the idea of learned helplessness to someone who has displayed considerable aggression.
These two doctrines do not mesh well; the first presumes a rational actor while the latter presumes the opposite. Efforts to protect oneself, others, or property have long been recognized as exculpating factors in criminal cases. A defendant in a homicide case who pleads self-defense must convince the factfinder s that he or she perceived imminent danger of serious injury or death and that this belief was reasonable in the circumstances.
Juries have been known to give defendants considerable latitude under the imminent danger rule. It can be even difficult to think of them even as people. Can you imagine someone like Clarence Thomas as an RV tourist?
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Apparently, that is how he likes to spend his spare time. And Ruth Bader Ginsburg loves to hit the gym. Regardless of liberal or conservative leanings, these are the influential legal minds who have and will set the course of U. Listening to the words of justices past and present may help you follow a more righteous path. This is the ordinary course in a free society.