Herbert L. Packer discusses two contrasting models of the criminal process: the due process model, which emphasizes individual rights, and the crime control model, which prioritizes the regulation of criminal conduct. He examines these models to reveal underlying normative tensions in the criminal justice system, highlighting their operational implications within the context of American society. While neither model fully captures reality, they serve as frameworks for analyzing competing values and assumptions that shape criminal law and policy.

1. Two Models of the Criminal Process
HERBERT L. PACKER
Source: Reprinted from The Limits of the Criminal Sanction by
Herbert L. Packer, with the permission of the publishers,
Stanford University Press. ( 1968 by Herbert L. Packer.
In one of the most important contributions to systematic thought
about the administration of criminal justice, Herbert Packer
articulates the values supporting two models of the justice
process. He notes the gulf existing between the "Due Process
Model" of criminal administration, with its emphasis on the
rights of the individual, and the "Crime Control Model," which
sees the regulation of criminal conduct as the most important
function of the judicial system.
T
wo models of the criminal process will let us perceive the
normative antinomy at the heart of the criminal law. These
models are not labeled Is and Ought, nor are they to be taken in
that sense. Rather, they represent an attempt to abstract two
separate value systems that compete for priority in the operation
of the criminal process. Neither is presented as either
corresponding to reality or representing the ideal to the
exclusion of the other. The two models merely afford a
convenient way to talk about the operation of a process whose
day-to-day functioning involves a constant series of minute
adjustments between the competing demands of two value
systems and whose normative future likewise involves a series
of resolutions of the tensions between competing claims.
I call these two models the Due Process Model and the Crime
Control Model. . . . As we examine the way the models operate

2. in each successive stage, we will raise two further inquiries:
first, where on a spectrum between the extremes represented by
the two models do our present practices seem approximately to
fall; second, what appears to be the direction and thrust of
current and foreseeable trends along each such spectrum?
There is a risk in an enterprise of this sort that is latent in any
attempt to polarize. It is, simply, that values are too various to
be pinned down to yes-or-no answers. The models are
distortions of reality. And, since they are normative in
character, there is a danger of seeing one or the other as Good
or Bad. The reader will have his preferences, as I do, but we
should not be so rigid as to demand consistently polarized
answers to the range of questions posed in the criminal process.
The weighty questions of public policy that inhere in any
attempt to discern where on the spectrum of normative choice
the “right” answer lies are beyond the scope of the present
inquiry. The attempt here is primarily to clarify the terms of
discussion by isolating the assumptions that underlie competing
policy claims, and examining the conclusions that those claims,
if fully accepted, would lead to.
VALUES UNDERLYING THE MODELS
Each of the two models we are about to examine is an attempt to
give operational content to a complex of values underlying the
criminal law. As I have suggested earlier, it is possible to
identify two competing systems of values, the tension between
which accounts for the intense activity now observable in the
development of the criminal process. The actors in this
development—lawmakers, judges, police, prosecutors, defense
lawyers—do not often pause to articulate the values that
underlie the positions that they take on any given issue. Indeed,
it would be a gross oversimplification to ascribe a coherent and
consistent set of values to any of these actors. Each of the two
competing schemes of values we will be developing in this
section contains components that are demonstrably present some

3. of the time in some of the actors’ preferences regarding the
criminal process. No one person has ever identified himself as
holding all of the values that underlie these two models. The
models are polarities, and so are the schemes of values that
underlie them. A person who subscribed to all of the values
underlying the other would be rightly viewed as a fanatic. The
values are presented here as an aid to analysis, not as a program
for action.
Some Common Ground
However, the polarity of the two models is not absolute.
Although it would be possible to construct models that exist in
an institutional vacuum, it would not serve our purposes to do
so. We are postulating, not a criminal process that operates in
any kind of society at all, but rather one that operates within the
framework of contemporary American society. This leaves
plenty of room for polarization, but it does require the
observance of some limits. A model of the criminal process that
left out of account relatively stable and enduring features of the
American legal system would not have much relevance to our
central inquiry. For convenience, these elements of stability and
continuity can be roughly equated with minimal agreed limits
expressed in the Constitution of the United States and, more
importantly, with unarticulated assumptions that can be
perceived to underlie those limits. Of course, it is true that the
Constitution is constantly appealed to by proponents and
opponents of many measures that affect the criminal process.
And only the naive would deny that there are few conclusive
positions that can be reached by appeal to the Constitution. Yet
there are assumptions about the criminal process that are widely
shared and that may be viewed as common ground for the
operation of any model of the criminal process. Our first task is
to clarify these assumptions.
First, there is the assumption, implicit in the ex post facto
clause of the Constitution, that the function of defining conduct

4. that may be treated as criminal is separate from and prior to the
process of identifying and dealing with persons as criminals.
How wide or narrow the definition of criminal conduct must be
is an important question of policy that yields highly variable
results depending on the values held by those making the
relevant decisions. But that there must be a means of definition
that is in some sense separate from and prior to the operation of
the process is clear. If this were not so, our efforts to deal with
the phenomenon of organized crime would appear ludicrous
indeed (which is not to say that we have by any means
exhausted the possibilities for dealing with that problem within
the limits of this basic assumption).
A related assumption that limits the area of controversy is that
the criminal process ordinarily ought to be invoked by those
charged with the responsibility for doing so when it appears that
a crime has been committed and that there is a reasonable
prospect of apprehending and convicting its perpetrator.
Although police and prosecutors are allowed broad discretion
for deciding not to invoke the criminal process, it is commonly
agreed that these officials have no general dispensing power. If
the legislature has decided that certain conduct is to be treated
as criminal, the decision makers at every level of the criminal
process are expected to accept that basic decision as a premise
for action. The controversial nature of the occasional case in
which the relevant decision makers appear not to have played
their appointed role only serves to highlight the strength with
which the premise holds. This assumption may be viewed as the
other side of the ex post facto coin. Just as conduct that is not
proscribed as criminal may not be dealt with in the criminal
process, so conduct that has been denominated as criminal must
be treated as such by the participants in the criminal process
acting within their respective competences.
Next, there is the assumption that there are limits to the powers
of government to investigate and apprehend persons suspected

5. of committing crimes. I do not refer to the controversy (settled
recently, at least in broad outline) as to whether the Fourth
Amendment’s prohibition against unreasonable searches and
seizures applies to the states with the same force with which it
applies to the federal government. Rather, I am talking about
the general assumption that a degree of scrutiny and control
must be exercised with respect to the activities of law
enforcement officers, that the security and privacy of the
individual may not be invaded at will. It is possible to imagine
a society in which even lip service is not paid to this
assumption. Nazi Germany approached but never quite reached
this position. But no one in our society would maintain that any
individual may be taken into custody at any time and held
without any limitation of time during the process of
investigating his possible commission of crimes, or would argue
that there should be no form of redress for violation of at least
some standards for official investigative conduct. Although this
assumption may not appear to have much in the way of positive
content, its absence would render moot some of our most hotly
controverted problems. If there were not general agreement that
there must be some limits on police power to detain and
investigate, the highly controversial provisions of the Uniform
Arrest Act, permitting the police to detain a person for
questioning for a short period even though they do not have
grounds for making an arrest; would be a magnanimous
concession by the all-powerful state rather than, as it is now
perceived, a substantial expansion of police power.
Finally, there is a complex of assumptions embraced by terms
such as “the adversary system,” “procedural due process,”
“notice and an opportunity to be heard,” and “day in court.”
Common to them all is the notion that the alleged criminal is
not merely an object to be acted upon but an independent entity
in the process who may, if he so desires, force the operators of
the process to demonstrate to an independent authority (judge
and jury) that he is guilty of the charges against him. It is a

6. minimal assumption. It speaks in terms of “may” rather than
“must.” It permits but does not require the accused, acting by
himself or through his own agent, to play an active role in the
process. By virtue of that fact the process becomes or has the
capacity to become a contest between, if not equals, at least
independent actors. As we shall see, much of the space between
the two models is occupied by stronger or weaker notions of
how this contest is to be arranged, in what cases it is to be
played, and by what rules. The Crime Control Model tends to
de-emphasize this adversary aspect of the process; the Due
Process Model tends to make it central. The common ground,
and it is important, is the agreement that the process has, for
everyone subjected to it, at least the potentiality of becoming to
some extent an adversary struggle.
So much for common ground. There is a good deal of it, even in
the narrowest view. Its existence should not be overlooked,
because it is, by definition, what permits partial resolutions of
the tension between the two models to take place. The rhetoric
of the criminal process consists largely of claims that disputed
territory is "really" common ground: that, for example, the
premise of an adversary system "necessarily" embraces the
appointment of counsel for everyone accused of crime, or
conversely, that the obligation to pursue persons suspected of
commuting crimes "necessarily" embraces interrogation of
suspects without the intervention of counsel. We may smile
indulgently at such claims; they are rhetoric, and no more. But
the form in which they are made suggests an important truth:
that there is a common ground of value assumption about the
criminal process that makes continued discourse about its
problems possible.
Crime Control Values
The value system that underlies the Crime Control Model is
based on the proposition that the repression of criminal conduct
is by far the most important function to be performed by the

7. criminal process. The failure of law enforcement to bring
criminal conduct under tight control is viewed as leading to the
breakdown of public order and thence to the disappearance of an
important condition of human freedom. If the laws go
unenforced—which is to say, if it is perceived that there is a
high percentage of failure to apprehend and convict in the
criminal process—a general disregard for legal controls tends to
develop. The law-abiding citizen then becomes the victim of all
sorts of unjustifiable invasions of his interests. His security of
person and property is sharply diminished, and, therefore, so is
his liberty to function as a member of society. The claim
ultimately is that the criminal process is a positive guarantor of
social freedom. In order to achieve this high purpose, the Crime
Control Model requires that primary attention be paid to the
efficiency with which the criminal process operates to screen
suspects, determine guilt, and secure appropriate dispositions of
persons convicted of crime.
Efficiency of operation is not, of course, a criterion that can be
applied in a vacuum. By “efficiency” we mean the system's
capacity to apprehend, try, convict, and dispose of a high
proportion of criminal offenders whose offenses become known.
In a society in which only the grossest forms of antisocial
behavior were made criminal and in which the crime rate was
exceedingly low, the criminal process might require the
devotion of many more man-hours of police, prosecutorial, and
judicial time per case than ours does, and still operate with
tolerable efficiency. A society that was prepared to increase
even further the resources devoted to the suppression of crime
might cope with a rising crime rate without sacrifice of
efficiency while continuing to maintain an elaborate and time-
consuming set of criminal processes. However, neither of these
possible characteristics corresponds with social reality in this
country. We use the criminal sanction to cover an increasingly
wide spectrum of behavior thought to be antisocial, and the
amount of crime is very high indeed, although both level and

8. trend are hard to assess. At the same time, although precise
measures are not available, it does not appear that we are
disposed in the public sector of the economy to increase very
drastically the quantity, much less the quality, of the resources
devoted to the suppression of criminal activity through the
operation of the criminal process. These factors have an
important bearing on the criterion of efficiency, and therefore
on the nature of the Crime Control Model.
The model, in order to operate successfully, must produce a
high rate of apprehension and conviction, and must do so in a
context where the magnitudes being dealt with are very large
and the resources for dealing with them are very limited. There
must then be a premium on speed and finality. Speed, in turn,
depends on informality and on uniformity; finality depends on
minimizing the occasions for challenge. The process must not
be cluttered up with ceremonious rituals that do not advance the
progress of a case. Facts can be established more quickly
through interrogation in a police station than through the formal
process of examination and cross-examination in a court. It
follows that extrajudicial processes should be preferred to
judicial processes, informal operations to formal ones. But
informality is not enough; there must also be uniformity.
Routine, stereotyped procedures are essential if large numbers
are being handled. The model that will operate successfully on
these presuppositions must be an administrative, almost a
managerial, model. The image that comes to mind is an
assembly-line conveyor belt down which moves an endless
stream of cases, never stopping, carrying the cases to workers
who stand at fixed stations and who perform on each case as it
comes by the same small but essential operation that brings it
one step closer to being a finished product, or, to exchange the
metaphor for the reality, a closed file. The criminal process, in
this model, is seen as a screening process in which each
successive state—prearrest investigation, arrest, postarrest
investigation, preparation for trial, trial or entry of plea,

9. conviction, disposition—involves a series of routinized
operations whose success is gauged primarily by their tendency
to pass the case along to a successful conclusion.
What is a successful conclusion? One that throws off at an early
stage those cases in which it appears unlikely that the person
apprehended is an offender and then secures, as expeditiously as
possible, the conviction of the rest, with a minimum of
occasions for challenge, let alone post-audit. By the application
of administrative expertness, primarily that of the police and
prosecutors, an early determination of the probability of
innocence or guilt emerges. Those who are probably innocent
are screened out. Those who are probably guilty are passed
quickly through the remaining stages of the process. The key to
the operation of the model regarding those who are not screened
out is what I shall call a presumption of guilt. The concept
requires some explanation, since it may appear startling to
assert that what appears to be the precise converse of our
generally accepted ideology of a presumption of innocence can
be an essential element of a model that does correspond in some
respects to the actual operation of the criminal process.
The presumption of guilt is what makes it possible for the
system to deal efficiently with large numbers, as the Crime
Control Model demands. The supposition is that the screening
processes operated by police and prosecutors are reliable
indicators of probable guilt. Once a man has been arrested and
investigated without being found to be probably innocent, or, to
put it differently, once a determination has been made that here
is enough evidence of guilt to permit holding him for further
action, then all subsequent activity directed toward him is based
on the view that he is probably guilty. The precise point at
which this occurs will vary from case to case; in many cases it
will occur as soon as the suspect is arrested, or even before, if
the evidence of probable guilt that has come to the attention of
the authorities is sufficiently strong. But in any case the

10. presumption of guilt will begin to operate well before the
“suspect” becomes a “defendant.”
The presumption of guilt is not, of course, a thing. Nor is it
even a rule of law in the usual sense. It simply is the
consequence of a complex of attitudes, a mood. If there is
confidence in the reliability of informal administrative fact-
finding activities that take place in the early stages of the
criminal process, the remaining stages of the process can be
relatively perfunctory without any loss in operating efficiency.
The presumption of guilt, as it operates in the Crime Control
Model, is the operational expression of that confidence.
It would be a mistake to think of the presumption of guilt as the
opposite of the presumption of innocence that we are so used to
thinking of as the polestar of the criminal process and that, as
we shall see, occupies an important position in the Due Process
Model. The presumption of innocence is not its opposite; it is
irrelevant to the presumption of guilt; the two concepts are
different rather than opposite ideas. The difference can perhaps
be epitomized by an example. A murderer, for reasons best
known to himself, chooses to shoot his victim in plain view of a
large number of people. When the police arrive, he hands them
his gun and says, “I did it and I'm glad.” His account of what
happened is corroborated by several eyewitnesses. He is placed
under arrest and led off to jail. Under these circumstances,
which may seem extreme but which in fact characterize with
rough accuracy the evidentiary situation in a large proportion of
criminal cases, it would be plainly absurd to maintain that more
probably than not the suspect did not commit the killing. But
that is not what the presumption of innocence means. It means
that until there has been an adjudication of guilt by an authority
legally competent to make such an adjudication, the suspect is
to be treated, for reasons that have nothing whatever to do with
the probable outcome of the case, as if his guilt is an open
question.

11. The presumption of innocence is a direction to officials about
how they are to proceed, not a prediction of outcome. The
presumption of guilt, however, is purely and simply a prediction
of outcome. The presumption of innocence is, then, a direction
to the authorities to ignore the presumption of guilt in their
treatment of the suspect. It tells them, in effect, to close their
eyes to what will frequently seem to be factual probabilities.
The reasons why it tells them this are among the animating
presuppositions of the Due Process Model, and we will come to
them shortly. It is enough to note at this point that the
presumption of guilt is descriptive and factual; the presumption
of innocence is normative and legal. The pure Crime Control
Model has no truck with the presumption of innocence, although
its real-life emanations are, as we shall see, brought into uneasy
compromise with the dictates of this dominant ideological
position. In the presumption of guilt this model finds a factual
predicate for the position that the dominant goal of repressing
crime can be achieved through highly summary processes
without any great loss of efficiency (as previously defined),
because of the probability that, in the run of cases, the
preliminary screening process operated by the police and the
prosecuting officials contains adequate guarantees of reliable
fact-finding. Indeed, the model takes an even stronger position.
It is that subsequent processes, particularly those of a formal
adjudicatory nature, are unlikely to produce as reliable fact-
finding as the expert administrative process that precedes them
is capable of. The criminal process thus must put special weight
on the quality of administrative fact-finding. It becomes
important, then, to place as few restrictions as possible on the
character of the administrative fact-finding processes and to
limit restrictions to such as enhance reliability, excluding those
designed for other purposes. As we shall see, this view of
restrictions on administrative fact-finding is a consistent theme
in the development of the Crime Control Model.

12. In this model, as I have suggested, the center of gravity of the
process lies in the early, administrative fact-finding stages. The
complementary proposition is that the subsequent stages are
relatively unimportant and should be truncated as much as
possible. This, too, produces tensions with presently dominant
ideology. The pure Crime Control Model has very little use for
many conspicuous features of the adjudicative process, and in
real life works out a number of ingenious compromises with
them. Even in the pure model, however, there have to be devices
for dealing with the suspect after the preliminary screening
process has resulted in a determination of probable guilt. The
focal device, as we shall see, is the plea of guilty; through its
use, adjudicative fact-finding is reduced to its barest essentials
and operating at its most successful pitch, it offers two
possibilities: an administrative fact-finding process leading (1)
to exoneration of the suspect, or (2) to the entry of a plea of
guilty.
Due Process Values
If the Crime Control Model resembles an assembly line, the Due
Process Model looks very much like an obstacle course. Each of
its successive stages is designed to present formidable
impediments to carrying the accused any further along in the
process. Its ideology is not the converse of that underlying the
Crime Control Model. It does not rest on the idea that it is not
socially desirable to repress crime, although critics of its
application have been known to claim so. Its ideology is
composed of a complex of ideas, some of them based on
judgments about the efficacy of crime control devices, others
having to do with quite different considerations. The ideology
of due process is far more deeply impressed on the formal
structure of the law than is the ideology of crime control; yet an
accurate tracing of the strands that make it up is strangely
difficult. What follows is only an attempt at an approximation.
The Due Process Model encounters its rival on the Crime

13. Control Model's own ground in respect to the reliability of fact-
finding processes. The Crime Control Model, as we have
suggested, places heavy reliance on the ability of investigative
and prosecutorial officers, acting in an informal setting in
which their distinctive skills are given full sway, to elicit and
reconstruct a tolerably accurate account of what actually took
place in an alleged criminal event. The Due Process Model
rejects this premise and substitutes for it a view of informal,
nonadjudicative fact-finding that stresses the possibility of
error. People are notoriously poor observers of disturbing
events—the more emotion-arousing the context, the greater the
possibility that recollection will be incorrect; confessions and
admissions by persons in police custody may be induced by
physical or psychological coercion so that the police end up
hearing what the suspect thinks they want to hear rather than the
truth; witnesses may be animated by bias or interest that no one
would trouble to discover except one specially charged with
protecting the interests of the accused (as the police are not).
Considerations of this kind all lead to a rejection of informal
fact-finding processes as definitive of factual guilt and to an
insistence on formal, adjudicative, adversary fact-finding
processes in which the factual case against the accused is
publicly heard by an impartial tribunal and is evaluated only
after the accused has had a full opportunity to discredit the case
against him. Even then, the distrust of fact-fording processes
that animates the Due Process Model is not dissipated. The
possibilities of human error being what they are, further
scrutiny is necessary, or at least must be available, in case facts
have been overlooked or suppressed in the heat of battle.
How far this subsequent scrutiny must be available is a hotly
controverted issue today. In the pure Due Process Model the
answer would be: at least as long as there is an allegation of
factual error that has not received an adjudicative hearing in a
fact-finding context. The demand for finality is thus very low in
the Due Process Model.

14. This strand of due process ideology is not enough to sustain the
model. If all that were at issue between the two models was a
series of questions about the reliability of fact-finding
processes, we would have but one model of the criminal
process, the nature of whose constituent elements would pose
questions of fact not of value. Even if the discussion is
confined, for the moment, to the question of reliability, it is
apparent that more is at stake than simply an evaluation of what
kinds of fact-finding processes, alone or in combination, are
likely to produce the most nearly reliable results. The stumbling
block is this: How much reliability is compatible with
efficiency? Granted that informal fact-finding will make some
mistakes that can be remedied if backed up by adjudicative
factfinding, the desirability of providing this backup is not
affirmed or negated by factual demonstrations or predictions
that the increase in reliability will be x percent or x plus n
percent. It still remains to ask how much weight is to be given
to the competing demands of reliability (a high degree of
probability in each case that factual guilt has been accurately
determined) and efficiency (expeditious handling of the large
numbers of cases that the process ingests). The Crime Control
Model is more optimistic about the improbability of error in a
significant number of cases: but it is also, though only in part
therefore, more tolerant about the amount of error that it will
put up with. The Due Process Model insists on the prevention
and elimination of mistakes to the extent possible; the Crime
Control Model accepts the probability of mistakes up to the
level at which they interfere with the goal of repressing crime,
either because too many guilty people are escaping or, more
subtly, because general awareness of the unreliability of the
process leads to a decrease in the deterrent efficacy of the
criminal law. In this view, reliability and efficiency are not
polar opposites but rather complementary characteristics. The
system is reliable because efficient; reliability becomes a matter
of independent concern only when it becomes so attenuated as

15. to impair efficiency. All of this the Due Process Model rejects.
If efficiency demands shortcuts around reliability, then absolute
efficiency must be rejected. The aim of the process is at least as
much to protect the factually innocent as it is to convict the
factually guilty. It is a little like quality control in industrial
technology; tolerable deviation from standard varies with the
importance of conformity to standard in the destined uses of the
product. The Due Process Model resembles a factory that has to
devote a substantial part of its input to quality control. This
necessarily cuts down on quantitative output.
All of this is only the beginning of the ideological difference
between the two models. The Due Process Model could disclaim
any attempt to provide enhanced reliability for the fact-finding
process and still produce a set of institutions and processes that
would differ sharply from those demanded by the Crime Control
Model. Indeed, it may not be too great an oversimplification to
assert that in point of historical development the doctrinal
pressures emanating from the demands of the Due Process
Model have tended to evolve from an original matrix of concern
for the maximization of reliability into values quite different
and more far-reaching. These values can be expressed in,
although not adequately described by, the concept of the
primacy of the individual and the complementary concept of
limitation on official power.
The combination of stigma and loss of liberty that is embodied
in the end result of the criminal process is viewed as being the
heaviest deprivation that government can inflict on the
individual. Furthermore, the processes that culminate in these
highly afflictive sanctions are seen as in themselves coercive,
restricting, and demeaning. Power is always subject to abuse—
sometimes subtle, other times, as in the criminal process, open
and ugly. Precisely because of its potency in subjecting the
individual to the coercive power of the state, the criminal
process must, in this model, be subjected to controls that

16. prevent it from operating with maximal efficiency. According to
this ideology, maximal efficiency means maximal tyranny. And,
although no one would assert that minimal efficiency means
minimal tyranny, the proponents of the Due Process Model
would accept with considerable equanimity a substantial
diminution in the efficiency with which the criminal process
operates in the interest of preventing official oppression of the
individual.
The most modest-seeming but potentially far-reaching
mechanism by which the Due Process Model implements these
antiauthoritarian values is the doctrine of legal guilt. According
to this doctrine, a person is not to be held guilty of a crime
merely on a showing that in all probability, based upon reliable
evidence, he did factually what he is said to have done. Instead,
he is to be held guilty if and only if these factual determinations
are made in procedurally regular fashion and by authorities
acting within competences duly allocated to them. Furthermore,
he is not to be held guilty, even though the factual
determination is or might be adverse to him, if various rules
designed to protect him and to safeguard the integrity of the
process are not given effect: the tribunal that convicts him must
have the power to deal with his kind of case (“jurisdiction”) and
must be geographically appropriate (“venue”); too long a time
must not have elapsed since the offense was committed (“statute
of limitations”); he must not have been previously convicted or
acquitted of the same or a substantially similar offense (“double
jeopardy”); he must not fall within a category of persons, such
as children or the insane, who are legally immune to conviction
(“criminal responsibility”); and so on. None of these
requirements has anything to do with the factual question of
whether the person did or did not engage in the conduct that is
charged as the offense against him; yet favorable answers to any
of them will mean that he is legally innocent. Wherever the
competence to make adequate factual determination lies, it is
apparent that only a tribunal that is aware of these guilt-

17. defeating doctrines and is willing to apply them can be viewed
as competent to make determinations of legal guilt. The police
and the prosecutors are ruled out by lack of competence, in the
first instance, and by lack of assurance of willingness, in the
second. Only an impartial tribunal can be trusted to make
determinations of legal as opposed to factual guilt.
In this concept of legal guilt lies the explanation for the
apparently quixotic presumption of innocence of which we
spoke earlier. A man who, after police investigation, is charged
with having committed a crime can hardly be said to be
presumptively innocent, if what we mean is factual innocence.
But if what we mean is that it has yet to be determined if any of
the myriad legal doctrines that serve in one way or another the
end of limiting official power through the observance of certain
substantive and procedural regularities may be appropriately
invoked to exculpate the accused man, it is apparent that as a
matter of prediction it cannot be said with confidence that more
probably than not he will be found guilty.
Beyond the question of predictability this model posits a
functional reason for observing the presumption of innocence:
by forcing the state to prove its case against the accused in an
adjudicative context, the presumption of innocence serves to
force into play all the qualifying and disabling doctrines that
limit the use of the criminal sanction against the individual,
thereby enhancing his opportunity to secure a favorable
outcome. In this sense, the presumption of innocence may be
seen to operate as a kind of self-fulfilling prophecy. By opening
up a procedural situation that permits the successful assertion of
defenses having nothing to do with factual guilt, it vindicates
the proposition that the factually guilty may nonetheless be
legally innocent and should therefore be given a chance to
qualify for that kind of treatment.
The possibility of legal innocence is expanded enormously when

18. the criminal process is viewed as the appropriate forum for
correcting its own abuses. This notion may well account for a
greater amount of the distance between the two models than any
other. In theory the Crime Control Model can tolerate rules that
forbid illegal arrests, unreasonable searches, coercive
interrogations, and the like. What it cannot tolerate is the
vindication of those rules in the criminal process itself through
the exclusion of evidence illegally obtained or through the
reversal of convictions in cases where the criminal process has
breached the rules laid down for its observance. And the Due
Process Model, although it may in the first instance be
addressed to the maintenance of reliable fact-finding
techniques, comes eventually to incorporate prophylactic and
deterrent rules that result in the release of the factually guilty
even in cases in which blotting out the illegality would still
leave an adjudicative fact-finder convinced of the accused
person's guilt. Only by penalizing errant police and prosecutors
within the criminal process itself can adequate pressure be
maintained, so the argument runs, to induce conformity with the
Due Process Model.
Another strand in the complex of attitudes underlying the Due
Process Model is the idea—itself a shorthand statement for a
complex of attitudes-of equality. This notion has only recently
emerged as an explicit basis for pressing the demands of the
Due Process Model, but it appears to represent, at least in its
potential, a most powerful norm for influencing official
conduct. Stated most starkly, the ideal of equality holds that
“there can be no equal justice where the kind of trial a man gets
depends on the amount of money he has.” The factual predicate
underlying this assertion is that there are gross inequalities in
the financial means of criminal defendants as a class, that in an
adversary system of criminal justice an effective defense is
largely a function of the resources that can be mustered on
behalf of the accused, and that the very large proportion of
criminal defendants who are, operationally speaking, “indigent”

19. will thus be denied an effective defense. This factual premise
has been strongly reinforced by recent studies that in turn have
been both a cause and an effect of an increasing emphasis upon
norms for the criminal process based on the premise.
The norms derived from the premise do not take the form of an
insistence upon governmental responsibility to provide literally
equal opportunities for all criminal defendants to challenge the
process. Rather, they take as their point of departure the notion
that the criminal process, initiated as it is by the government
and containing as it does the likelihood of severe deprivations
at the hands of government, imposes some kind of public
obligation to ensure that financial inability does not destroy the
capacity of an accused to assert what may be meritorious
challenges to the processes being invoked against him. At its
most gross, the norm of equality would act to prevent situations
in which financial inability forms an absolute barrier to the
assertion of a right that is in theory generally available, as
where there is a right to appeal that is, however, effectively
conditional upon the filing of a trial transcript obtained at the
defendant’s expense. Beyond this, it may provide the basis for a
claim whenever the system theoretically makes some kind of
challenge available to an accused who has the means to press it.
If, for example, a defendant who is adequately represented has
the opportunity to prevent the case against him from coming to
the trial stage by forcing the state to its proof in a preliminary
hearing, the norm of equality may be invoked to assert that the
same kind of opportunity must be available to others as well. In
a sense the system, as it functions for the small minority whose
resources permit them to exploit all its defensive possibilities,
provides a benchmark by which its functioning in all other cases
is to be tested: not, perhaps, to guarantee literal identity but
rather to provide a measure of whether the process as a whole is
recognizably of the same general order. The demands made by a
norm of this kind are likely by their very nature to be quite
sweeping. Although the norm's imperatives may be initially

20. limited to determining whether in a particular case the accused
was injured or prejudiced by his relative inability to make an
appropriate challenge, the norm of equality very quickly moves
to another level on which the demand is that the process in
general be adapted to minimize discriminations rather than that
a mere series of post hoc determinations of discriminations be
made or makeable.
It should be observed that the impact of the equality norm will
vary greatly depending upon the point in time at which it is
introduced into a model of the criminal process. If one were
starting from scratch to decide how the process ought to work,
the norm of equality would have nothing very important to say
on such questions as, for example, whether an accused should
have the effective assistance of counsel in deciding whether to
enter a plea of guilty. One could decide, on quite independent
considerations, that it is or is not a good thing to afford that
facility to the generality of persons accused of crime. But the
impact of the equality norm becomes far greater when it is
brought to bear on a process whose contours have already been
shaped. If our model of the criminal process affords defendants
who are in a financial position to do so the right to consult a
lawyer before entering a plea, then the equality norm exerts
powerful pressure to provide such an opportunity to all
defendants and to regard the failure to do so as a malfunctioning
of the process of whose consequences the accused is entitled to
be relieved. In a sense, this has been the role of the equality
norm in affecting the real-world criminal process. It has made
its appearance on the scene comparatively late and has therefore
encountered a system in which the relative financial inability of
most persons accused of crime results in treatment very
different from that accorded the small minority of the
financially capable. For this reason, its impact has already been
substantial and may be expected to be even more so in the
future.

21. There is a final strand of thought in the Due Process Model that
is often ignored but that needs to be candidly faced if thought
on the subject is not to be obscured. This is a mood of
skepticism about the morality and utility of the criminal
sanction, taken either as a whole or in some of its applications.
The subject is a large and complicated one, comprehending as it
does much of the intellectual history of our times. It is properly
the subject of another essay altogether. To put the matter
briefly, one cannot improve upon the statement by Professor
Paul Bator:
In summary we are told that the criminal law's notion of just
condemnation and punishment is a cruel hypocrisy visited by a
smug society on the psychologically and economically crippled;
that its premise of a morally autonomous will with at least some
measure of choice whether to comply with the values expressed
in a penal code is unscientific and outmoded; that its reliance on
punishment as an educational and deterrent agent is misplaced,
particularly in the case of the very members of society most
likely to engage in criminal conduct; and that its failure to
provide for individualized and humane rehabilitation of
offenders is inhuman and wasteful. 1
This skepticism, which may be fairly said to be widespread
among the most influential and articulate contemporary leaders
of informed opinion, leads to an attitude toward the processes of
the criminal law that, to quote Mr. Bator again, engenders “a
peculiar receptivity toward claims of injustice which arise
within the traditional structure of the system itself, fundamental
disagreement and unease about the very bases of the criminal
law has, inevitably, created acute pressure at least to expand
and liberalize those of its processes and doctrines which serve
to make more tentative its judgments or limit its power.” In
short, doubts about the ends for which power is being exercised
create pressure to limit the discretion with which that power is
exercised.

22. The point need not be pressed to the extreme of doubts about or
rejection of the premises upon which the criminal sanction in
general rests. Unease may be stirred simply by reflection on the
variety of uses to which the criminal sanction is put and by a
judgment that an increasingly large proportion of those uses
may represent an unwise invocation of so extreme a sanction. It
would be an interesting irony if doubts about the propriety of
certain uses of the criminal sanction prove to contribute to a
restrictive trend in the criminal process that in the end requires
a choice among uses and. finally an abandonment of some of the
very uses that stirred the original doubts, but for a reason quite
unrelated to those doubts.
There are two kinds of problems that need to be dealt with in
any model of the criminal process. One is what the rules shall
be. The other is how the rules shall be implemented. The second
is at least as important as the first, as we shall see time and
again in our detailed development of the models. The distinctive
difference between the two models is not only in the rules of
conduct that they lay down but also in the sanctions that are to
be invoked when a claim is presented that the rules have been
breached and, no less importantly, in the timing that is
permitted or required for the invocation of those sanctions.
As I have already suggested, the Due Process Model locates at
least some of the sanctions for breach of the operative rules in
the criminal process itself. The relation between these two
aspects of the process—the rules and the sanctions for their
breach—is a purely formal one unless there is some mechanism
for bringing them into play with each other. The hinge between
them in the Due Process Model is the availability of legal
counsel. This has a double aspect. Many of the rules that the
model requires are couched in terms of the availability of
counsel to do various things at various stages of the process—
this is the conventionally recognized aspect; beyond it, there is
a pervasive assumption that counsel is necessary in order to

23. invoke sanctions for breach of any of the rules. The more freely
available these sanctions are, the more important is the role of
counsel in seeing to it that the sanctions are appropriately
invoked. If the process is seen as a series of occasions for
checking its own operation, the role of counsel is a much more
nearly central one than is the case in a process that is seen as
primarily concerned with expeditious determination of factual
guilt. And if equality of operation is a governing norm, the
availability of counsel is seen as requiring it for all. Of all the
controverted aspects of the criminal process, the right to
counsel, including the role of government in its provision, is the
most dependent on what one’s model of the process looks like,
and the least susceptible of resolution unless one has confronted
the antinomies of the two models.
I do not mean to suggest that questions about the right to
counsel disappear if one adopts a model of the process that
conforms more or less closely to the Crime Control Model, but
only that such questions become absolutely central if one’s
model moves very far down the spectrum of possibilities toward
the pure Due Process Model. The reason for this centrality is to
be found in the assumption underlying both models that the
process is an adversary one in which the initiative in invoking
relevant rules rests primarily on the parties concerned, the state,
and the accused. One could construct models that placed central
responsibility on adjudicative agents such as committing
magistrates and trial judges. And there are, as we shall see,
marginal but nonetheless important adjustments in the role of
the adjudicative agents that enter into the models with which we
are concerned. For present purposes it is enough to say that
these adjustments are marginal, that the animating
presuppositions that underlie both models in the context of the
American criminal system relegate the adjudicative agents to a
relatively passive role, and therefore place central importance
on the role of counsel.

24. One last introductory note: . . . What assumptions do we make
about the sources of authority to shape the real-world operations
of the criminal process? Recognizing that our models are only
models, what agencies of government have the power to pick
and choose between their competing demands? Once again, the
limiting features of the American context come into play. Ours
is not a system of legislative supremacy. The distinctively
American institution of judicial review exercises a limiting and
ultimately a shaping influence on the criminal process. Because
the Crime Control Model is basically an affirmative model,
emphasizing at every turn the existence and exercise of official
power, its validating authority is ultimately legislative
(although proximately administrative). Because the Due Process
Model is basically a negative model, asserting limits on the
nature of official power and on the modes of its exercise, its
validating authority is judicial and requires an appeal to
supralegislative law, to the law of the Constitution. To the
extent that tensions between the two models are resolved by
deference to the Due Process Model, the authoritative force at
work is the judicial power, working in the distinctively judicial
mode of invoking the sanction of nullity. That is at once the
strength and the weakness of the Due Process Model: its
strength because in our system the appeal to the Constitution
provides the last and overriding word; its weakness because
saying no in specific cases is an exercise in futility unless there
is a general willingness on the part of the officials who operate
the process to apply negative prescriptions across the board. It
is no accident that statements reinforcing the Due Process
Model come from the courts, while at the same time facts
denying it are established by the police and prosecutors.
NOTE
1. Paul Bator, “Finality in Criminal Law and Federal Habeas
Corpus for State Prisoners,” Harvard Law Review 76 (1963):
441-442.

25. Two Models of the Criminal Process
12
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27. Ch. 1. pp. 11-18.
ADM135
1/30/2007
Fordham Law Review
Volume 67 | Issue 2 Article 2
1998
Feminist Legal Theory, Feminist Lawmaking , and
the Legal Profession
Cynthia Grant Bowman
Elizabeth M. Schneider

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Recommended Citation
Cynthia Grant Bowman and Elizabeth M. Schneider, Feminist
Legal Theory, Feminist Lawmaking , and the Legal Profession,
67 Fordham
L. Rev. 249 (1998).
Available at: http://ir.lawnet.fordham.edu/flr/vol67/iss2/2
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mailto:[email protected]
ARTICLES
FEMINIST LEGAL THEORY, FEMINIST
LAWMAKING, AND THE LEGAL
PROFESSION
Cynthia Grant Boivman* and Elizabeth Al. Schneider*
INTRODUcTION
T HIS essay addresses the interrelationship among feminist
legal
_ theory, feminist lawmaking,' and the legal profession. We de-

29. scribe a complex interaction between theory and practice that
has two
main "arenas": (1) the interaction between feminist legal theory
and
the development of feminist lawmaking and substantive law,
and (2)
the impact of feminist legal theory upon the way law is
practiced. We
begin with a brief introduction to the variety of feminist legal
theories
and their relationship to substantive legal struggles in which
feminist
practitioners have been engaged. We then turn to a more
detailed
description of the impact of feminist legal theory on legal
practice and
the legal profession.
We argue that examination of theory and practice in both arenas
reveals a spiral relationship in which feminist practice has
generated
feminist legal theory, theory has then reshaped practice, and
practice
has in turn reshaped theory.2 Thus, whether the issue is feminist
law
reform or the gendered structure of the legal profession,
feminist legal
theory cannot be understood apart from practice. At the same
time,
the formulation of legal theory has played an integral role in the
de-
velopment of social change in all of these areas.
* Professor of Law, Northwestern University School of Law.
Thanks to the Ju-
lius Rosenthal Endowment Fund for research support in the

30. summer of 1998 and to
Daniel Goldwin for his assistance with research for this essay.
** Professor of Law, Brooklyn Law School. Thanks to the
Brooklyn Law School
Faculty Research Program and to Joan Erskine and Alexandra
Derian for research
assistance.
1. "Feminist lawmaking" is the process by which "[w]omen have
shaped the law
by imagining the law differently[,]... developed theory from
practice, turned that new
theory into practice, and then brought it back to theory."
Elizabeth M. Schneider,
Feminist Lawmaking and Historical Consciousness: Bringing
the Past into tile Future,
2 Va. J. Soc. Pol'y & L. 1, 7 (1994) [hereinafter Schneider,
Feminist Lawmaking] (foot-
note omitted); see also Elizabeth M. Schneider, The Dialectic of
Rights and Politics:
Perspectives from the Women's Movement, 61 N.Y.U. L. Rev.
589, 604-10 (1986) [here-
inafter Schneider, Dialectic] (detailing the dialectical approach
to rights).
2. This relationship has been viewed as dialectical in the
lawmaking context. See
Schneider, Dialectic, supra note 1, at 604-05. Others have used
the phrase -theory-
practice spiral." See Phyllis Goldfarb, A Theory-Practice Spiral.
The Ethics of Femi-
nism and Clinical Education, 75 Minn. L. Rev. 1599, 1617
(1991).

31. FORDHAM LAW REVIEW
I. THE INTERRELATIONSHIP BETWEEN FEMINIST LEGAL
THEORY
AND FEMINIST LAWMAKING
During the century preceding the 1960s, there had been
substantial
efforts to change the law respecting women's rights in the
United
States. The women's suffrage movement fought for inclusion of
sex in
the text of the Fourteenth Amendment; Myra Bradwell fought
for the
right to be admitted to the bar under the Privileges and
Immunities
Clause of the Fourteenth Amendment; many litigants and
lawyers
sensitive to issues of sex discrimination raised legal issues
concerning
women's equality; and a major and finally successful effort to
pass the
Nineteenth Amendment to the Constitution gave women the
right to
vote.3 In the 1960s, a "second wave" of an active women's
rights
movement developed from the civil rights struggle, leading to
re-
newed efforts both to change the law so as to abolish sex
discrimina-
tion and to reshape the legal profession so as to integrate
women
within it.
4

32. This effort, led by a new generation of women's rights
attorneys,
manifested the interrelationship of theory and practice. Ruth
Bader
Ginsburg (then a law professor and counsel to the ACLU
Women's
Rights Project), important scholars in the area of sex
discrimination
such as Herma Hill Kay at Boalt Hall and Barbara Babcock at
Stan-
ford (who taught one of the first Women and the Law courses at
Yale
Law School), and many others taught and influenced a younger
gener-
ation of students who would become the leading lawyers
handling sex-
discrimination litigation. For example, the women's rights
litigators
who founded the San Francisco public interest firm Equal
Rights Ad-
vocates in 1974 (Wendy Williams, Mary Dunlap, and Nancy
Davis)
had worked with Herma Hill Kay at Boalt Hall.5 Ann Freedman
and
others who formed the Women's Law Center in Philadelphia had
been students at Yale who worked with Barbara Babcock. 6
The National Conference on Women and the Law, an annual
meet-
ing of practitioners, law students, and law teachers, also played
a criti-
cal role in providing a national forum to discuss and generate
cutting-
edge work in the area of women's rights.7 Radical ideas about
topics

33. 3. For a brief description of these developments and citations to
further reading,
see Mary Becker et al., Feminist Jurisprudence: Taking Women
Seriously 1-14 (1994).
4. See id. at 17-30 (citing sources).
5. See Cynthia Fuchs Epstein, Women in Law 137-39 (2d ed.
1993) (describing
the founding of Equal Rights Advocates). For a recent
discussion of the evolution of
the work of Equal Rights Advocates, see Judy Scales-Trent,
Equal Rights Advocates:
Addressing the Legal Issues of Women of Color, 13 Berkeley
Women's L.J. 34, 39-66
(1997).
6. See Barbara Allen Babcock et al., Sex Discrimination and the
Law: Causes
and Remedies at v (1975).
7. See id.; Patricia A. Cain, The Future of Feminist Legal
Theory, 11 Wis. Wo-
men's L.J. 367, 371-81 (1997) (describing the importance of the
conference to the
development of feminist legal theory and her experience as a
participant, panelist,
and organizer); Schneider, Feminist Lawmaking, supra note 1,
at 1-6.
[Vol. 67
1998] FEMINIST LEGAL THEORY & LAWMAKING 251

34. such as sexual harassment, date rape, battered women, and self-
de-
fense were discussed for the first time in these fora by lawyers
who
were working on these issues nationwide. The litigation efforts
that
followed, which posed issues of equal protection in a host of
areas
such as Social Security,8 pregnancy discrimination, and
parental
leave,9 as well as activist efforts around the Equal Rights
Amend-
ment,'" raised important arguments about the nature of gender
which
laid the foundation for feminist legal theory. Although the
presence
of women teachers in the law schools had a huge impact in
mobilizing,
energizing, and supporting a younger generation of women
entering
the legal profession to do this work, the theories of equality and
the
federal Equal Rights Amendment emerged primarily from the
practi-
cal demands of activist efforts at lawmaking. For example, in
1971,
Barbara Brown, Ann Freedman, Tom Emerson, and Gail Falk
wrote
an important article on Constitutional equality specifically to
shape
Congressional efforts to pass the Amendment." Catharine
MacKin-
non's 1979 book, Sexual Harassment of Working Women, was
written
to present a legal theory that explained the harm of sexual

35. harassment
as it had already been litigated by many feminist lawyers and
provide
an effective remedy for these harms.'
2
Today, feminist legal theory has evolved into four major
schools:
formal equality theory, "cultural feminism," dominance theory,
and
post-modem or anti-essentialist theory. 13 Formal equality
theory,
grounded in liberal democratic thought, argues that women
should be
treated the same as men, while cultural feminists emphasize the
need
to take account of "differences" between men and women.
Domi-
nance theory sidesteps both of these approaches, focusing
instead
upon the embedded structures of power that make men's
characteris-
tics the norm from which "difference" is constructed. Anti-
essential-
ism, by contrast, contends that there is no single category
"female,"
pointing instead to the varying perspectives resulting, for
example,
from the intersection of gender, race and class. The last three
ap-
8. See, eg., Califano v. Webster, 430 U.S. 313 (1977)
(construing section 215 of
the Social Security Act); Califano v. Goldfarb, 430 U.S. 199
(1977) (construing the

36. Federal Old-Age, Survivors, and Disability Insurance program);
Weinberger v. Vie-
senfeld, 420 U.S. 636 (1975) (same).
9. See California Federal Sav. & Loan Ass'n v. Guerra, 479 U.S.
272 (1987) (con-
struing the Pregnancy Discrimination Act of 1978); Geduldig v.
Aiello, 417 U.S. 484
(1974) (construing section 2626 of the California
Unemployment Insurance Code).
10. Becker et al., supra note 3, at 22-24; Jane J. Mansbridge,
Why We Lost the
ERA (1986).
11. Barbara A. Brown et al., The Equal Rights Amendment. A
Constitutional Ba-
sis for Equal Rights for Women, 80 Yale L.J. 871 (1971)
(outlining the development,
structure, and anticipated operation of the proposed Equal
Rights Amendment).
12. Catharine A. MacKinnon, Sexual Harassment of Working
Women: A Case of
Sex Discrimination (1979).
13. For discussion of each of these four branches of feminist
legal theory, see
Becker et al., supra note 3, at 68-98, 110-35.
FORDHAM LAW REVIEW
proaches are all "theoretical" critiques of formal equality which
emerged from the contradictions and political struggles that

37. devel-
oped in the course of efforts to implement formal equality in
practice
and addressed the limits of formal equality in redressing sex
discrimination.
The emergence of cultural feminism or "difference"
perspectives in
the law were largely shaped by efforts to understand the
uniquely fe-
male experiences of pregnancy and motherhood. For example,
the
historical failure of the Supreme Court's equality jurisprudence
to ad-
dress issues of pregnancy as implicating issues of gender
equality 4
had an enormous impact on women's lives and the law. In
response,
the Pregnancy Discrimination Act of 1978 defined pregnancy
discrimi-
nation as sex discrimination under Title VII 15 and generated
renewed
attention to the notion of "difference" in a variety of contexts.
In contrast, dominance theory presented an important
theoretical
framework within which to understand the harms of violence
against
women in areas such as domestic violence, rape, sexual
harassment,
and pornography. Formal equality (or at least a "gender
complemen-
tarity" theory of formal equality) was not adequate to analyze
these
harms, experienced almost exclusively by women, because it

38. failed to
address the patriarchal structures of power that led to and
perpetu-
ated them. Thus, dominance theory emerged from efforts to
grapple
with the reality and experience of male dominance and privilege
in
these areas.
Finally, anti-essentialist or post-modern feminism developed
from
challenges to a notion of a single feminist legal theory and
perspective
and articulated the need to account for the wide range of
feminist
perspectives that emerged from women of color, issues of
ethnicity,
problems of immigrant women, and cultural differences. 1 6 For
exam-
ple, Kimberl6 Crenshaw criticizes feminist legal theory's failure
to re-
flect African American women's experience of rape, 7 while
Paulette
14. See Geduldig, 417 U.S. at 497 n.20 (stating that
discrimination based upon
pregnancy is not sex discrimination under the Equal Protection
Clause, because it
classifies between non-pregnant persons, who can be male or
female, and pregnant
persons).
15. 42 U.S.C. § 2000e(k) (1994).
16. See, e.g., Kimberl6 Crenshaw, Demarginalizing the
Intersection of Race and

39. Sex: A Black Feminist Critique of Antidiscrimination Doctrine,
Feminist Theory and
Antiracist Politics, 1989 U. Chi. Legal F. 139, 140 [hereinafter
Crenshaw, Demarginal-
izing the Intersection] (arguing that many of the experiences
that black women face
are not subsumed within the traditional boundaries of race or
gender discrimination);
Kimberl6 Crenshaw, Mapping the Margins: Identity Politics,
Intersectionality and Vio-
lence Against Women of Color, 43 Stan. L. Rev. 1241, 1242-44
(1991) (describing the
intersectional location of women of color and their
marginalization within dominant
resistance discourses); Angela P. Harris, Race and Essentialism
in Feminist Legal The-
ory, 42 Stan. L. Rev. 581, 585 (1990) (discussing the need for
multiple consciousness in
the feminist movement).
17. See Crenshaw, Demarginalizing the Intersection, supra note
16, at 157-60.
[Vol. 67
1998] FEMINIST LEGAL THEORY & LAWMAKING 253
Caldwell explains how employment discrimination law fails to
capture
discrimination that is motivated by both sex and race. 8 This
approach
has emphasized the importance of storytelling, both as a way to
bring
diverse experiences into the law and as a way to broaden the

40. legal
descriptions of experience that are translated into law. 9 This
theoret-
ical perspective challenges us to address the intersections of
race, gen-
der, ethnicity, class, sexual orientation, age, and disability, as
well as to
explore what commonality might mean in coalition efforts. It
also
challenges us to move beyond the telling of stories to more
substan-
tive change.
There are many examples of how the spiral from practice to
theory
and back to practice has operated. For example, feminist
practice ef-
forts to argue pregnancy as an issue of gender equality led to
both
practical law reform strategies such as the Pregnancy
Discrimination
Act and feminist legal scholarship on these issues. A variety of
per-
spectives were developed by Sylvia Law,20 Herma Hill Kay,2'
Wendy
Williams,2 and Lucinda Finley,' among others, and were
reflected in
public disagreement and debate in the "Cal Fed" case, in which
femi-
nist groups filed opposing briefs about whether pregnancy
disability
should be given "special" treatment not afforded to other
temporary
disabilities.2 4
18. See Paulette M. Caldwell, A Hair Piece: Perspectives on the

41. Intersection of
Race and Gender, 1991 Duke L.J. 365, 371-72.
19. See, eg., Richard Delgado, Storytelling for Oppositionists
and Others: A Plea
for Narrative, 87 Mich. L. Rev. 2411, 2412-13 (1989)
(describing how outsiders' stories
build cohesion within the excluded group and subvert the
dominant ideology); Kim
Lane Scheppele, Foreword: Telling Stories, 87 Mich. L Rev.
2073, 2083-84 (1989)
(describing the broadening of legal discourse to include the
stories of "outsiders" such
as women and people of color).
20. See Sylvia A. Law, Rethinking Sex and the Constitution,
132 U. Pa. L Rev. 955,
1008-10 (1984) (arguing for heightened scrutiny of laws
governing reproductive biol-
ogy, including an inquiry into whether the law has a significant
impact in perpetuating
the oppression of women).
21. See Herna Hill Kay, Equality and Difference: Tile Case of
Pregnancy, 1
Berkeley Women's LJ. 1, 37-38 (1985) (arguing that the proper
comparison to deter-
mine sex discrimination is between employees who exercise
their reproductive rights
and become pregnant-a group comprised entirely of women-and
male employees,
who exercise their reproductive rights but do not become
pregnant).
22. See Wendy W. Williams, Equality's Riddle: Pregnancy and
the Equal Treat-

42. ment/Special Treatment Debate, 13 N.Y.U. Rev. L. & Soc.
Change 325, 330 (1984-
1985) (arguing that the burden of justification should be placed
upon the party de-
fending a law or rule that has a disproportionate negative
impact on one sex).
23. See Lucinda M. Finley, Transcending Equality Theory: A
Way Out of the Ma-
ternity and the Workplace Debate, 86 Colum. L. Rev. 1118,
1165-67 (1986) (arguing for
an integration of the public sphere of work and the private
sphere of family, and a re-
ordering of the gender hierarchy that currently values the
"masculine" public sphere
at the expense of the "feminine" private sphere).
24. In California Federal Savings & Loan Ass'n %. Guerra, 479
U.S. 272 (1987),
feminist legal scholars filed amicus briefs on both sides. NOW,
the NOW Legal De-
fense and Education Fund, the National Women's Law Center
and others, repre-
sented by Wendy Williams, argued that the California statute
requiring employers to
provide leave for childbirth constituted sex discrimination and
should be upheld only
FORDHAM LAW REVIEW
In short, feminist legal theory has highlighted the issue of
gender in
law, and the range of feminist legal theories that have
developed con-

43. tinue to deepen our understanding of the complex
interrelationship
between gender and law. But it is important to appreciate the
critical
way in which feminist legal theory emerged from practice, and
the
way in which new theoretical insights formulated by litigators
and aca-
demics continue to reshape practice. Indeed, feminist legal
theory,
understood generically, has been the intellectual means for
argument
and debate about issues of equality that first emerged in law
reform
practice and continue to resonate both in practice and in the
world at
large.
This interrelationship is inevitable because the worlds of theory
and
practice in this area of the law are inextricably linked. An
unusual
number of feminist legal theorists and academics have a
background
in practice, particularly on issues of gender.' Many continue to
work
as scholar-activists and cultural commentators on a range of
issues af-
fecting gender and law-as lawyers arguing cases, drafting
legislation,
writing amicus briefs, serving as reporters to state and federal
task
forces, or commenting to the media-or have moved among these
roles at different periods of their professional lives.2 6
Theory and practice are also inextricably linked in this area

44. because
of the close proximity between issues of life and law. Anita
Hill's
challenge to Clarence Thomas's Supreme Court appointment, for
ex-
ample, highlighted more than a decade of litigation and
scholarship on
sexual harassment and resulted, in turn, in the further
refinement of
feminist theory. 7 The O.J. Simpson case brought similar work
on do-
if employers were required to provide disability leave to all
employees. Other femi-
nist law professors and other groups, represented by Christine
Littleton and Judith
Resnik, filed a brief arguing that the law should be upheld
because it remedied a form
of sex discrimination not addressed by federal law, the
discriminatory impact of inad-
equate leave policies on women's right of procreative choice.
The Supreme Court
upheld the California legislation, holding that it had not been
preempted by the Preg-
nancy Discrimination Act. For excerpts from the two amicus
briefs, see Becker et al.,
supra note 3, at 65-67.
25. Wendy Williams, Catharine MacKinnon, Carrie Menkel-
Meadow, and Lucie
White are only some of the many feminist legal scholars whose
work is grounded in
feminist legal practice experience.
26. For example, law professors such as Rhonda Copelon,
Sylvia Law, Christine

45. Littleton, Judith Resnik, Deborah Rhode, Susan Deller Ross,
Nadine Taub, Wendy
Williams, and both authors of this article are among many who
have participated in
these different ways.
27. The Southern California Law Review, for example, held a
symposium on the
Hill-Thomas hearings, which produced, among other wonderful
pieces of scholarship,
Martha R. Mahoney's article, Exit: Power and the Idea of
Leaving in Love, Work, and
the Confirmation Hearings, 65 S. Cal. L. Rev. 1283 (1992). In
it, Mahoney attacks the
idea that if a woman does not leave a job or battering
relationship then the harass-
ment or violence against her either did not exist or could not
have been "so bad,"
arguing that this idea fails to recognize that women more
typically attempt to stop the
attacks and preserve what is rewarding about the job or
relationship (as well as to
avoid the even greater problems that leaving can pose). See id.
at 1300-04.
[Vol. 67
1998] FEMINIST LEGAL THEORY & LAWMAKING 255
mestic violence and intimate femicide to public attention and, in
turn,
generated feminist analysis.' Current debates concerning
President
Clinton, Paula Jones, and Monica Lewinsky again bring issues

46. of femi-
nist "theory" to the fore. In short, feminist practice and theory
con-
cern issues of daily life-how women and men live, work, and
relate.
These real-life issues engage and galvanize public attention and
then
generate law reform efforts, such as the effort to educate
Congress
about sexual harassment in the Clarence Thomas confirmation
hear-
ings, which in turn generate more theory. And the spiral
continues,
as, for example, the tremendous amount of sexual harassment
litiga-
tion that arose after the Hill-Thomas hearings led to the
Supreme
Court's series of decisions in 199829 and resulted in richer and
more
nuanced theoretical exploration among feminist legal scholars.Y
IL THE INTERRELATIONSHIP BETWEEN FEMINIST LEGAL
THEORY
AND THE LEGAL PROFESSION
Just as substantive legal doctrines, law reform, and social
change
have developed out of the interplay between theory and
practice, fem-
inist legal theory has also emerged from women's experience in
the
legal profession and has contributed, in turn, to shaping that
experi-
ence. The admission of women into law schools in the late
1960s led
to the proliferation of both feminist lawmaking and feminist

47. legal the-
ory. At the same time, women graduating from those institutions
in
28. See, e.g., Donna Meredith Matthews, Making the Crucial
Connection: A Pro-
posed Threat Hearsay Exception, 27 Golden Gate U. L. Rev.
117, 159-64 (1997) (argu-
ing for a domestic homicide victim exception to hearsay
evidence rules to allow the
court to hear about the victims' fears of lethal attack); Myrna S.
Raeder, The Admissi-
bility of Prior Acts of Domestic Violence: Simpson and Beyond,
69 S. Cal. L Rev.
1463, 1512-16 (1996) (arguing that the rules of evidence that
bar evidence of previous
acts of domestic violence in femicide trials are gender-biased
and must be changed to
allow a jury to see the pattern of violence between a defendant
and his victim in order
to render a fair verdict); Karleen F. Murphy, Note, A Hearsay
Erception for Physical
Abuse, 27 Golden Gate U. L. Rev. 497, 522-25 (1997)
(evaluating the physical abuse
exception to existing hearsay rules enacted by the California
legislature in response to
the verdict in the criminal trial of O.J. Simpson).
29. See Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2279
(1998); Burlington
Indus., Inc. v. Ellerth, 118 S. Ct. 2257, 2269 (1998); Gebser v.
Lago Vista Indep. Sch.
Dist., 118 S. Ct. 1989,2000 (1998); Oncale v. Sundowner
Offshore Serv. Inc., 118 S. Ct.
998, 1001 (1998).

48. 30. See generally, e.g., Kathryn Abrams, The New
Jurisprudence of Sexual Harass-
ment, 83 Cornell L. Rev. 1169 (1998) (arguing that sexual
harassment should be un-
derstood as a practice that preserves male control and
entrenches masculine norms in
the workplace-an interference with human agency, particularly
the agency of wo-
men); Anita Bernstein, Treating Sexual Harassment with
Respect, 111 Harv. L Rev.
445 (1997) (urging that the "reasonableness" standards for
sexual harassment law
should be replaced with an alternate standard of the "respectful"
person); Katherine
M. Franke, Gender, Sex, Agency and Discrimination: A Reply
to Professor Abrams,
83 Cornell L. Rev. 1245 (1998) (defending the author's
formulation of sexual harass-
ment as gender-based harm); Vicki Schultz, Reconceptualizing
Sexual Harassment,
107 Yale L. 1683 (1998) (proposing a competence-centered
account of hostile work
environment harassment).
FORDHAM LAW REVIEW
increasing numbers during the 1970s and 1980s had a direct
interest in
the structure of the legal profession and its responsiveness to
their
needs as lawyers as well as litigants. As a result, feminist legal
theo-
rists have taken a lively interest in the issues raised by the
problems

49. women encounter in the legal profession, and the development
of var-
ious feminist theoretical perspectives has dramatically impacted
law
reform efforts within the profession itself. In addition, women
practi-
tioners, judges, and academics became involved in investigating
and
reporting on the status of women in the legal profession for a
variety
of groups, including the ABA Commission on Women in the
Profes-
sion and both state and federal gender bias task forces. The
reports
that resulted from their investigations reflected a persistent
sexism
that has plagued women's entry into the legal profession,
exposing the
limits of formal equality in this context.
The mass of material that now exists on gender bias within the
legal
profession, on balancing career and family, and on sexism
within the
traditional law firm culture attests to the continuing vitality
(and per-
haps depressing consistency) of these themes. Reflecting upon
efforts
to address the problem of gender bias within the profession,
feminist
legal scholars and practitioners have developed profound
insights into
the nature of, and institutional obstacles to, gender equality.
They
have also begun to develop both innovative lawyering practices
and

50. theories about the legal profession, the status of women within
it, and
sources of change. Like the development of substantive legal
doc-
trines, theory in this context cannot be divorced from practice
and
from the real-life experiences of women.
A. Formal Equality as the Route into the Legal Profession
To paraphrase Catharine MacKinnon, women lawyers cannot
help
but have a certain affection for formal equality theory, because
it was
responsible for gaining them access to the legal profession on
the
same terms as men.3 1 With some exceptions, women were
largely ex-
cluded from legal education for much of the nineteenth and
twentieth
centuries. Harvard Law School admitted its first women
students only
in 1950, and a few other schools excluded women until the
1960s and
1970s.32 Even then, women law students faced other barriers,
as ad-
missions quotas restricted their numbers and hostility greeted
their
presence in the classroom.3 3 Federal anti-discrimination laws,
31. See Catharine A. MacKinnon, Difference and Dominance:
On Sex Discrimina-
tion, in Feminism Unmodified: Discourses on Life and Law 32,
35 (1987) ("I have to
confess a sincere affection for [formal equality theory] .... It has
gotten women some

51. access to employment and education, the public pursuits,
including academic, profes-
sional, and blue-collar work .... " (citations omitted)).
32. See Cynthia Fuchs Epstein, Women in Law 50 (1981).
33. See id. at 63-67; Karen Berger Morello, The Invisible Bar:
The Woman Law-
yer in America: 1638 to the Present 103-07 (1986).
[Vol. 67
1998] FEMINIST LEGAL THEORY & LAWMAKING 257
grounded in notions of formal equality, were responsible for
shatter-
ing outright barriers to access to legal education. 34 In March
1971, the
Professional Women's Caucus filed a class action lawsuit
against every
law school in the country receiving federal funds, based in part
on
preliminary statistics provided by the Association of American
Law
Schools' Committee on Women in Legal Education." Thereafter,
the
number of women studying law increased from 8.5% of the total
in
1970 to 33.5% in 1980,36 and has hovered between 40% and
50% since
1986.37
Upon graduation from law school, women still faced barriers to
ob-

52. taining legal jobs, especially in elite law firms; until the 1970s,
Wall
Street firms openly refused to hire women.3" Again, lawsuits
based on
formal equality principles provided a remedy for the outright
refusal
to hire women, and Title VII suits were ultimately successful in
forc-
ing law firms to hire women.39 Thus, it is not surprising that
formal
equality theories were the first to attract allegiance among legal
prac-
titioners and academics, as they had been so necessary and were
so
rapidly successful in breaking down formal barriers to women's
entry
into the legal profession.
B. Early Theoretical Reflections upon the Continuing Problems
that
Formal Equality Does Not Address
Once women were admitted to law schools and law firms, they
en-
countered problems that formal equality theory did not appear
to ad-
dress. Informal barriers to success in law firms proved even
harder to
surmount than outright denial of access had been. Hired as
associates
in numbers comparable to men, few women became partners or
rose
to positions of power within private firms, supporting the notion
that
some sort of "glass ceiling" prevented the promotion of women
to

53. positions at the top of the law firm hierarchy.4" Women's
continuing
role as the primary caretakers of children (and of elderly
persons and
households in general) appeared to be incompatible with the
structure
of high-powered legal work, with its requirements for very long
hours
worked away from home.
34. See Becker et al., supra note 3, at 825-26; Herma Hill Kay
& Martha S. West,
Sex-Based Discrimination: Text, Cases and Materials 1121-23
(4th ed. 1996).
35. See Judith Hole & Ellen Levine, Rebirth of Feminism 103
(1971).
36. See Epstein, supra note 32, at 53.
37. See Commission on Women in the Profession, American Bar
Ass'n, Unfin-
ished Business: Overcoming the Sisyphus Factor 7 (1995)
[hereinafter ABA 1995
Report].
38. See Epstein, supra note 32, at 83-95; Morello, supra note
33, at 194-217.
39. See Epstein, supra note 32, at 184-88; Morello, supra note
33, at 210-15.
40. See Commission on Women in the Profession, American Bar
Ass'n, Report to
the House of Delegates 5 (1988) [hereinafter ABA 1988
Report]; Mona Harrington,
Women Lawyers: Rewriting the Rules 37-38 (1994).

54. FORDHAM LAW REVIEW
Women entering legal academia faced similar problems. By
1986,
women represented 40% of law students but only about 20% of
full-
time law faculty, and many women law teachers were employed
as
clinicians or legal writing instructors-lower-paying and lower-
status
positions within the law school hierarchy.4 ' Studies also
showed that
women law professors obtained tenure at a lower rate than
men.42
Women of color still fare worst in the law teaching market.
They
enter teaching at lower ranks than minority men of similar
qualifica-
tions, obtain jobs at significantly less prestigious schools, and
are more
likely to teach courses considered low in status-differences that
per-
sist when controlling for a variety of indicia of merit, such as
academic
credentials and clerkships.4 3
Whether as a result of their own failure to thrive in academia,
their
own previous experiences in practice, or reports returning from
fe-
male students they had taught, feminist law professors began to
reflect
upon the reasons that women continued to face barriers to full

55. partici-
pation in the legal profession. The theories they advanced in
this con-
text began to develop a sustained critique of formal equality as
the
route to improving women's status within the profession.
One of the earliest and most influential articles was written by
Car-
rie Menkel-Meadow. In Portia in a Different Voice,4 4 Menkel-
Meadow applied Carol Gilligan's "different voice" (or cultural
femi-
nist) theory to women's participation in the legal profession.
Begin-
ning from Gilligan's conclusion that women tend to employ
different
modes of moral reasoning than men, and specifically an "ethic
of
care" rather than a more abstract rights-based approach,
Menkel-
Meadow suggested that women would also prefer a substantially
dif-
ferent lawyering style than men. This would explain women's
discom-
fort at the adversarial, win/lose rules of engagement in both law
school and litigation. Menkel-Meadow thus suggested that
women
lawyers would reject adversarial modes of practice and seek
modes of
lawyering that take the interests of all parties into account and
en-
deavor to preserve the relationships among them-alternative
dispute
resolution, for example.4 5 She argued that women lawyers
would also
organize their work relationships in a less competitive, more

56. collabo-
41. See Marina Angel, Women in Legal Education: What It's
Like to Be Part of a
Perpetual First Wave or the Case of the Disappearing Women,
61 Temp. L. Rev. 799,
803 (1988).
42. See Richard H. Chused, The Hiring and Retention of
Minorities and Women on
American Law School Faculties, 137 U. Pa. L. Rev. 537, 550
(1988).
43. See Deborah J. Merritt et al., Family, Place, and Career: The
Gender Paradox
in Law School Hiring, 1993 Wis. L. Rev. 395, 405-06.
44. Carrie Menkel-Meadow, Portia in a Different Voice:
Speculations on a Wo-
men's Lawyering Process, 1 Berkeley Women's L.J. 39 (1985)
[hereinafter Menkel-
Meadow, Portia in a Different Voice]; see Carrie Menkel-
Meadow, Portia Redux: An-
other Look at Gender, Feminism, and Legal Ethics, 2 Va. J. Soc.
Pol'y & L. 75 (1994).
45. See Menkel-Meadow, Portia in a Different Voice, supra note
44, at 50-55.
[Vol. 67
1998] FEMINIST LEGAL THEORY & LAWMAKING 259
rative, and egalitarian manner and would structure the

57. workplace to
accommodate the demands of private as well as public life.
4 6
Menkel-Meadow's early cultural feminist analysis of the legal
pro-
fession, while speculative, was suggestive of further research.
For ex-
ample, Rand Jack and Dana Crowley Jack used this approach in
their
empirical study of thirty-six lawyers, concluding that gender
was asso-
ciated with different moral orientations and responses to ethical
di-
lemmas, but only when the legal norm or professional standard
was
unclear.4 7 If so, this does little to alleviate the discomfort
women law-
yers who are care-oriented may feel in an adversarial legal
setting.
Based upon their interviews with individual women lawyers, the
Jacks
described three different ways they handled this conflict: (1)
some
simply emulated the "male" rights-oriented model and denied
their
more "relational" selves, subordinating personal concerns to the
de-
mands of their professional roles; (2) others "split the self" into
a de-
tached lawyer at work and the caring self at home; and (3) still
others
attempted to reshape their role as lawyers to conform to their
per-
sonal morality.48

58. Suzanna Sherry applied a cultural feminist approach to the
judici-
ary, attempting to demonstrate through her study of the opinions
of
Justice Sandra Day O'Connor that women judges display greater
con-
cern for context and community and less for abstract rules than
do
male judges.49 Her conclusions have been called into question
by
later studies50 and challenged by Justice O'Connor herself.5'
De-
tached from an attempt to identify specific theoretical or moral
ap-
proaches with particular individuals, the cultural relativist
approach to
judging as a legal enterprise may provide important insights. In
a re-
cent book, for example, Robin West describes an ethic of care
rooted
in a preeminently female experience of connection, emotion,
related-
ness, and empathy, which, she argues, provides a distinct moral
stance
that is interdependent with and necessary to an ethic of
justice.52 An-
alyzing judicial opinions in a number of recent cases, West
shows that
46. See id. at 56-57.
47. See Rand Jack & Dana Crowley Jack, Moral Vision and
Professional Deci-
sions: The Changing Values of Women and Men Lawyers 54-55,
75 (1989).

59. 48. See i. at 130-55.
49. See Suzanna Sherry, Civic Virtue and the Feminine Voice in
Constitutional Ad-
judication, 72 Va. L. Rev. 543, 592-613 (1986).
50. See, e.g., Sue Davis, The Voice of Sandra Day O'Connor, 77
Judicature 134,
138-39 (1993) (concluding that Justice O'Connor's record
"do[es] very little to support
the assertion that [her] decision making is distinct by virtue of
her gender"). A recent
article compared the decisions of Justices O'Connor and
Ginsburg and concluded that
the differences, driven primarily by ideology, between them
were more significant
than the similarities. See Michael E. Solimine & Susan E.
Wheatley, Rethinking Femi-
nist Judging, 70 Ind. LJ. 891, 900-05 (1995).
51. See Sandra Day O'Connor, Portia's Progress, 66 N.Y.U. L
Rev. 1546, 1558
(1991).
52. See Robin West, Caring for Justice 22-93 (1997).
FORDHAM LAW REVIEW
a judge who fails on either branch-justice or care-fails to render
a
genuinely just decision.53 Thus, the insights of cultural
relativism,
drawn from the experiences of women's lives, are "fed back"
into the

60. real world of legal practice as more universal guides for
judging.
Other feminist legal scholars have grounded themselves in
domi-
nance feminism for their analysis of women's continuing
problems in
the legal profession. In her attack upon formal equality,
Catharine
MacKinnon had challenged the origins and structural
significance of
the "norms" that define "normality" in the workplace, showing
that
men and their typical lives were taken as the standard against
which
the performance of all persons were to be measured. 4
Following this
approach, other feminist legal scholars have openly attacked the
rules
under which success in the legal arena is defined and which
serve to
perpetuate men's dominance in the profession. In an important
early
essay, Leslie Bender pursued this analysis in the context of
women's
efforts at success in law firms as they are currently structured. 5
She
attacked both formal equality's assimilationist premise that
women
should be required to take on the characteristics and lifestyles
cur-
rently associated with men in order to succeed as lawyers and
the cul-
tural feminist argument that women should be accorded
"special"
treatment, like the "mommy-track, ' 56 to compensate for their

61. differ-
ences from men. Instead, Bender argued that the legal
profession was
"constructed by men to reinforce and reward their gendered
male
characteristics," and must be reconstructed on the basis of
gender
equality, eliminating the disadvantages women face in their
continuing
roles as interpersonal caregivers.5 1 In short, feminist
theoretical anal-
ysis of the legal profession resulted in calls to end
discrimination
against women lawyers by changing in profound ways how law
is
practiced.
C. Attempts by Women Lawyers and Academics to Attack the
Problem of Gender Bias in the Profession: Task Forces
and Commissions
In the 1980s and 1990s, a new form of literature began to
emerge-
reports from task forces and commissions established by women
prac-
titioners under the aegis of state supreme courts or bar
associations.5 8
53. See id. at 50-61.
54. See MacKinnon, supra note 31, at 34, 36, 43 (1987).
55. Leslie Bender, Sex Discrimination or Gender Inequality?, 57
Fordham L. Rev.
941 (1989).
56. The term "mommy-track" is typically used to describe more

62. flexible, often
part-time, working arrangements established for women with
small children. See id. at
943.
57. Id. at 949.
58. The first reports were published in the early 1980s by task
forces established
by the New Jersey and New York supreme courts, at the
instigation of women judges
and practitioners. See The First Year Report of the New Jersey
Supreme Court Task
[Vol. 67
1998] FEMINIST LEGAL THEORY & LAWMAKING 261
The gender bias task force movement provides the most striking
ex-
ample of this development, which compiled and described the
exper-
iences of women in the legal system both as lawyers and
litigants. The
material assembled by the task forces provided data about the
problems women lawyers continued to experience in the
profession,
and some included suggestions for change. In addition,
publication of
the reports was official recognition that discrimination against
women
in the legal profession continued to exist and thus legitimized
the

63. claims that had been emerging from the academy.
The task forces undertaking these independent investigations
typi-
cally consisted of a mix of judges, practitioners, and academics;
their
methods of research included surveys, public hearings, and
round-ta-
bles. Among other topics, each task force undertook an
investigation
of gender bias in the courtroom. The ABA Commission on
Women in
the Profession extended the investigation to discrimination
against
women in law firms and other settings, held public hearings,
and pub-
lished reports in 1988 and 1995.59 Women law professors took
part in
all of these commissions and task forces, often assisting in
research
design and drafting the reports.60
The findings presented in these reports are astonishingly
similar,
lending persuasion from their sheer cumulative effect. The state
court
task force reports describe continuing discrimination against
women
Force on Women in the Courts-June 1984,9 Women's Rts. L
Rep. 129 (1986); Report
of the New York Task Force on Women in the Courts (1986), 15
Fordham Urb. L.J. 1
(1986-1987). By now, a total of 35 states and five federal
judicial circuits have issued
reports as well. See Gender Bias Topic Bibliography (1998)

64. (Info. Serv., Nat'l Ctr. for
State Courts, P.O. Box 8798, Williamsburg, VA 23187-8798).
59. ABA 1988 Report, supra note 40; ABA 1995 Report, supra
note 37. The ABA
Commission also published a report on women in legal
education in 1996. See Com-
mission on Women in the Profession, American Bar Ass'n,
Elusive Equality: The
Experiences of Women in Legal Education (1996). These are
only a few of the re-
ports issued by groups of women practitioners in the last
decade. See Cynthia Fuchs
Epstein et al., Report, Glass Ceilings and Open Doors: Women's
Advancement in the
Legal Profession, 64 Fordham L. Rev. 291 (1995); Section of
Business Law, American
Bar Ass'n, Where Have All the Women Gone? The Retention
and Promotion of
Female Lawyers (1996). Women law students and law
placement personnel under-
took somewhat similar studies. See, e.g., Harvard Women's Law
Ass'n, Presumed
Equal: What America's Top Women Lawyers Really Think
About their Firms (1995);
Marilyn Tucker et al., Whatever Happened to the Class of
1983?, 78 Geo. LJ. 153
(1989).
60. For example, Cynthia Grant Bowman served as Reporter for
the Illinois Task
Force, Karen Czapanskiy for the Maryland Committee on
Gender Bias, and Suellyn
Scamecchia for the Michigan Task Force; and Judith Resnik
participated in the Gen-
der Bias Task Force for the Ninth Circuit. Law professors also

65. contributed a number
of longitudinal studies of their graduates to the literature. See,
e.g., David L Cham-
bers, Accommodation and Satisfaction: Women and Men
Lawyers and the Balance of
Work and Family, 14 L. & Soc. Inquiry 251 (1989) (studying
University of Michigan
Law School graduates' gender differences in balancing work and
family); Lee E. Tei-
telbaum et al., Gender, Legal Education, amid Legal Careers, 41
J. Legal Educ. 443
(1991) (reporting on the career choices of male and female
University of New Mexico
Law School graduates).
FORDHAM LAW REVIEW
lawyers in the courtroom by male attorneys and judges-for
example,
inappropriate and derogatory treatment, assumptions that
women are
less credible than men, and a variety of forms of sexual
harassment.
In addition, the findings demonstrate how women's and men's
percep-
tions of discrimination differ (in effect, women see it and men
don't
notice) .61 Although the task force reports were largely
essentialist
with regard to their conclusions about the experiences of
women,
some included brief references to the effect, for example, that
the ex-
periences of African American women were even worse.

66. 62 Most of
the state task forces deliberately chose to set aside questions of
race
or other discrimination in the legal profession for separate
study, leav-
ing the experiences of women of color (or of other marginalized
groups) to fall between the cracks.6 3
Bar association studies pointed repeatedly to job segregation,
pay
differentials, glass ceilings, sexual harassment, and
overwhelming
work/family conflicts encountered by women lawyers.' The
1988
ABA Report described testimony by women in law firms to the
effect
that they lacked mentors, were excluded from socialization with
cli-
ents, were not assigned to "plum" cases or only given minor
roles on
them, and were required to overcome a presumption of incompe-
tence.65 Moreover, the Glass Ceiling Report published by the
New
York City Bar Association in 1995 indicated that things might
be get-
ting worse rather than better: whereas 15.25% of female hires
became
partners between 1973 and 1981, only 5% of post-1981 hires
did.
66
Some have argued that the work of the various task forces and
com-
missions constituted an exercise in feminist theory-essentially,

67. cul-
tural feminism-in that they listened to women's voices and
focused
61. For descriptions of the reports of the state task forces, see
Ann J. Gellis, Great
Expectations: Women in the Legal Profession, A Commentary
on State Studies, 66 Ind.
L.J. 941 (1991); Judith Resnik, Asking about Gender in Courts,
21 Signs: J. of Women
in Culture and Soc'y 952 (1996); Jeannette F. Swent, Gender
Bias at the Heart of
Justice: An Empirical Study of State Task Forces, 6 S. Cal. Rev.
L. & Women's Stud. 1
(1996).
62. See, e.g., Illinois Task Force on Gender Bias in the Courts,
The 1990 Report of
the Illinois Task Force on Gender Bias in the Courts 221 (1990)
(reporting instances
of patronizing, demeaning, and dismissive conduct by male
judges toward African-
American female attorneys). California, Michigan, and Florida,
as well as the federal
task forces for the Ninth and D.C. Circuits, have made the
experiences of women of
color a more direct subject of study. See Resnik, supra note 61,
at 974.
63. See id. at 973-77. Indeed, a number of manuals for both
gender bias as well as
race and ethnic bias task forces counseled separate treatment,
for fear of distracting
attention paid from one to the other. See id. at 975.
64. See, e.g., Gellis, supra note 61, at 944-59 (recounting

68. dissimilarities between
men and women lawyers with respect to financial rewards,
opportunities for advance-
ment, firm dynamics, discrimination, and gender issues).
65. See ABA 1988 Report, supra note 40, at 11-12; see also
ABA 1995 Report,
supra note 37, at 10.
66. See Epstein et al., supra note 59, at 358-59.
[Vol. 67
1998] FEMINIST LEGAL THEORY & LAWMAKING 263
upon women's experiences as different from men's. 7 The
theoretical
grounding of the various studies carried out by the bench and
the bar,
however, was formal equality; this was perhaps inevitable,
given the
composition of the groups that authored them, which included
power-
ful "insiders."6 Thus, discrimination against women was
regarded
primarily as an aberration perpetrated against individuals, the
contin-
uation of outdated stereotypes, and an irrationality rather than a
structural problem requiring radical change in the profession.6 9
As a
result of this theoretical grounding, recommendations for
change
tended to be incremental, partial, and aimed at a particular
manifesta-

69. tion of the problem. As a remedy for in-court discrimination,
for ex-
ample, task forces recommended judicial education and better
control
by judges of their courtrooms. 70 To remedy problems faced by
women
in law firms, recommendations included part-time work and
flexible
schedules.7 ' A good deal of self-help literature appeared as
well, con-
taining, for example, advice about "rainmaking" by women.'
At the same time, however, practitioners for whom these
incremen-
tal changes had not worked told their stories in the legal press.
Law-
yers who had worked part-time or flexible hours, for instance,
described how "part-time" was interpreted as forty hours a week
and
resulted in guilt on their own part and resentment by others,
loss of
benefits and desirable work assignments, and either delay or
complete
derailment from the partnership track.7 3 In short, if the theory
behind
the task force recommendations was formal equality, the real-
life ex-
perience of women lawyers was proving its limits.
D. Academic Theory Confronts the Data from Practice
The studies and anecdotal evidence accumulated by
practitioners
did accomplish a number of things that were essential to the
further
development of feminist theorizing about the legal profession.

70. Similar
to the consciousness-raising groups of the 1960s, the reports of
multi-
ple task forces and commissions allowed women lawyers to
begin to
67. See Resnik, supra note 61, at 962 (describing unpublished
presentation by Ann
Shalleck).
68. Id. at 958-59.
69. As Judith Resnik observes, the "task forces themselves
demonstrate the suc-
cess of liberal theory in constructing an ideology of fairness
that the documentation of
systemic unfairness itself does not undo." Id. at 978-79.
70. See Swent, supra note 61, at 70-75.
71. See, e.g., ABA 1988 Report, supra note 40, at 15-16 (noting
that a balance
between family and work enhances productivity); ABA 1995
Report, supra note 37, at
17-19, 25, 27 (discussing various policies law firms have
implemented to enhance wo-
men's position in the workplace).
72. See, eg., Anne S. Gallagher, Widening The Net, A.B.A. J.,
Feb. 1995, at 60, 60
(discussing, for example, the rise in women's networking groups
as a means of im-
proving business skills); Stephanie F. Cahill, The Rain Women,
Cal. L Bus., Oct. 7,
1996, at 16 (advising women on improving business savvy).

71. 73. See Susan Vogel, Tire Perils of Part Thune, Cal. Law., Apr.
1996, at 37, 37-38.
FORDHAM LAW REVIEW
see their own experiences and perceived failures not as personal
or
private issues to be worked out on an individual basis (which
was
clearly not working) or as personal failures (or anomalies, as
law firms
typically explain the attrition of previous women lawyers to
newly re-
cruited female associates). Moreover, the sheer weight of the
evi-
dence impressed the task force and commission members and
forced
them to begin to reformulate the problems confronted as not just
"wo-
men's issues," but instead as issues for men, the profession, and
soci-
ety as a whole.
Additionally, the task force and commission reports and other
em-
pirical studies supplied important data to scholars, which both
allowed
and invited the application of a more theoretical approach.
Feminist
scholars within the legal academy were quick to make use of
this data,
either to test out or to formulate their own theories about sex
discrim-
ination. A large literature developed, from which just a few

72. examples
will be presented here, in order to show how theoretical
examination
from a feminist perspective contributes to analysis and reform
of the
legal profession.
Elizabeth Chambliss brings the social science literature of
large-
scale organizations to bear upon the problems of integrating
women
into the structure of the large law firm.74 She examines the
impact of
a variety of organizational factors, such as size,
bureaucratization, pro-
motion structure, and practice characteristics upon the
integration of
women in ninety-seven elite firms.75 A fact of central
importance, she
notes, is the highly subjective nature of evaluations toward
partner-
ship, by which law firms in essence "construct" their own labor
supply
by determining what sorts of characteristics to reward at both
the as-
sociate and partner level.76 Chambliss concludes that the
factors hav-
ing the most significant effect upon the integration of women
are the
length of time to partnership and the degree of bureaucratization
of
the firm, which she surmises may formalize previously informal
pat-
terns of occupational segregation.77
These are interesting observations, based upon hard empirical

73. data
that confirm the problems women have had succeeding in the
struc-
ture of large law firms. But what follows from this analysis?
Should
all law firms adopt longer partnership tracks? How is this to
happen?
Who or what will bring about the desired changes? Individual
law
74. See Elizabeth Chambliss, Organizational Determinants of
Law Firm Integra-
tion, 46 Am. U. L. Rev. 669 (1997) (discussing race as well as
gender integration).
75. See id. at 673-78.
76. See id. at 692-93; see also Commission on Women in the
Profession, American
Bar Ass'n, Fair Measure: Toward Effective Attorney
Evaluations 21-24 (1997) (rec-
ommending a process for "gender fair and effective
evaluation[s]," including valuing
multiple styles of work, structuring evaluation instruments and
interviews so both op-
erate more fairly, and including women in all phases and
aspects of the evaluation
process).
77. See Chambliss, supra note 74, at 728-30.
[Vol. 67
1998] FEMINIST LEGAL THEORY & LAWMAKING 265

74. firms? Male managing partners? Bar associations? The market?
In
short, the organizational analysis deployed by Chambliss bumps
up
against the need for thoroughgoing structural change in the
profession
and the absence of powerful groups with the will to accomplish
this
change. Chambliss acknowledges that there is likely to be
resistance
to such change, given the almost universal professional
ideology (at
least in large law firms) that treats family responsibilities as
suspect.7 s
Addressing the pros and cons of the "mommy-track" within law
firms, Rebecca Korzec brings another theoretical perspective to
bear
on this problem-feminist literature about motherhood and the
sex-
ual division of domestic labor.7 9 Korzec points out the
substantial
benefits that men as a group gain from the fact that women
perform
most of the caregiving labor in our society, concluding that
women
who follow a "mommy-track" basically subsidize their spouses'
ca-
reers while forestalling the transformative change that is
necessary
both at home and in the workplace to enable women to succeed
in law
firms.8 0 Her only substantive recommendations for change,
however,
are to attack excessive hourly billing and suggest the adoption

75. of gen-
der-neutral part-time work policies and alternate billing
methods,
such as fixed fee and value billing.8 ' Again, one wonders who
will
provide the impetus for these major changes in the operation of
the
legal profession, a question that looms even larger given
Korzec's de-
scription of the substantial benefits men derive from the current
re-
ward structure and sexual division of labor. Even if
accomplished,
moreover, there is reason to question whether the adoption by
firms
of the new policies suggested will prove adequate to overcome
the
substantial obstacles presented by the societal division of labor.
Expe-
rience in other countries, for example, shows that "gender-
neutral"
parenting leave is taken almost exclusively by women?' In
addition,
competitive pressures suggest that law firms are unlikely to
change
their ways of doing business on an individual or voluntary
basis.
In analyzing the "feminization of the legal profession," Carrie
Menkel-Meadow brings to bear not only the tools of feminist
analysis
but also substantial cross-historical, cross-cultural, and cross-
discipli-
nary (law and medicine) research on the profession.' She
concludes

76. 78. See id. at 741.
79. See Rebecca Korzec, Working on the "Moininy-Track":
Motherhood and Wo-
men Lawyers, 8 Hastings Women's L.J. 117 (1997).
80. See id. at 124-27.
81. See id. at 136-37.
82. See Jennifer Schirmer, Maternity Leave Policies: An
International Survey:
Sweden, 11 Harv. Women's L.J. 185, 186 (1988) (reporting that
very few men in Swe-
den took advantage of a gender-neutral and very generous
parental leave policy).
83. See Carrie Menkel-Meadow, Exploring a Research Agenda
of the Feminization
of the Legal Profession: Theories of Gender and Social Change,
14 L & Soc. Inquiry
289 (1989) [hereinafter Menkel-Meadow, Exploring a Research
Agenda]; see also Car-
rie Menkel-Meadow, The Comparative Sociology of Women
Lawyers: The "Ferniniza-
tion" of the Legal Profession, 24 Osgoode Hall L.J. 897 (1986).
FORDHAM LAW REVIEW
that for change to occur, it is necessary to explode the dominant
para-
digms not only of the legal profession but also of research about
it. It
is a mistake, she believes, to concentrate research and writing
on large
law firms or to focus on the "mommy-track" and other

77. work/family
issues.84 To do so accepts and thereby reinforces the dominant
(male) notions of success within the legal profession, the male
para-
digm of professionalism as individualist and hierarchical,
requiring
both professional "distance" and total commitment to work, and
traditional notions of the family and child-rearing." Preliminary
re-
search on career satisfaction seems to show that women define
success
"horizontally" rather than "vertically," finding fulfillment not
from
traditional monetary rewards and status or prestige, but instead
from
work that allows variety, balance, and larger meaning in their
lives.8 6
Rather than studying sex segregation in large law firms and
work/fam-
ily issues, therefore, Menkel-Meadow suggests that the more
impor-
tant questions for research concern the nature and content of
legal
work-how it is "defined, structured, and elaborated to reinforce
and
encode particular conceptions of how that work should be con-
ducted."87 Moreover, she argues that innovation within the
profession
is unlikely to occur within large law firms, the traditional
centers of
power; instead researchers should study alternative work
settings-
women-only firms and public interest and government jobs
where wo-
men tend to cluster-to see whether the practice of law and legal

78. cul-
ture are different in more heavily female institutions.8 8 In
short,
Menkel-Meadow holds out little hope for the ultimate success of
in-
cremental change within law firms as they are currently
structured,
calling instead for major changes within the legal profession-
changes
that will likely be explored first within alternative practice
settings and
for which the political will is likely to come from "outsiders."
E. Attempts to Develop a Theory of Feminist Lawyering
Through Practice
As Menkel-Meadow had predicted, attempts to confront the
limits
of formal equality have developed on the margins of the
profession, as
women practitioners and academics have attempted to develop a
vi-
sion of feminist lawyering that would transform the practice of
law.
We discuss two aspects of this development: the establishment
of wo-
men's law firms, and the theoretical work on feminist lawyering
by
women teaching in law school clinics.
84. See Menkel-Meadow, Exploring a Research Agenda, supra
note 83, at 307-08.
85. See id. at 307-10.
86. See id. at 307 (citing David Chambers's findings).
87. Id. at 304.
88. See id. at 317-18.

79. [Vol. 67
1998] FEMINIST LEGAL THEORY & LAWMAKING 267
1. Women's Law Firms
In a book originally published in 1981, Cynthia Fuchs Epstein
de-
scribed the feminist law firms that were established in the
1970s.9 A
number of women's firms were established in New York City,
in-
tending to serve women, democratize attorney-client relations,
and es-
tablish egalitarian working communities. 0 Before the decade
had
ended, however, these firms had all closed their doors, despite
consid-
erable success in their legal work. The practices foundered for a
vari-
ety of reasons, according to Epstein, many of them economic.
The
feminist lawyers were ambivalent about making money, took
many
clients who couldn't pay fees, and had trouble attracting fee-
paying
business other than family law cases. 91 The egalitarian
structure of
their law offices led to stress and resentment among attorneys
and
staff alike; moreover, women lawyers establishing the firms
were all
young, creating a dilemma when they began to have children

80. and
wanted to work part-time all at once.92 At the same time, the
wo-
men's firms were exploring open, new, and non-authoritarian
ways of
structuring the professional relationship. However, the firms'
largely
female clients tended not only to expect more of their feminist
law-
yers, but also to have unreasonable expectations (for example,
that no
fees would be charged for lengthy "nurturing" conversations
with
their attorneys), creating strains upon the attorney-client
relation-
ship.9 3 By 1978, the feminist firms in New York had
dissolved.
There appears to be a renaissance of women's (or majority wo-
men's) law firms in the 1990s.94 Like their predecessors, the
women
pursuing this option typically form their own firms out of a
desire to
pursue important social justice litigation (especially on matters
of sig-
nificance to women), to implement a vision of legal practice
that is
egalitarian, collaborative, and client-centered, and to obtain
more
flexibility in combining work and personal life than is available
in
large law firms.95 To accomplish this, some of these firms
either split
all profits equally or explicitly detach rewards from billable
hours, giv-
ing credit for administrative work, mentoring, and other

81. important
tasks within the firm.9 6 Women lawyers who work in these
firms re-
port a collegial attitude and comfortable environment as well as
crea-
89. See Cynthia Fuchs Epstein, Women in Law 139-61 (2d ed.
1993).
90. See id. at 140.
91. See id. at 145-50.
92. See id. at 150-52.
93. See id. at 152-56.
94. See Deborah Graham, Law's New Entrepreneurs, A.B.A. J.,
Feb. 1995, at 54;
Hallye Jordan, Sacramento's Largest All-Women Firm Turns 10,
Cal. L Bus., July 1,
1991, at 5; Abdon M. Pallasch, Women-Owned Firns Slow to
Form But Many Predict
a Future Increase, Chi. Law., May 1995, at 4; Robert Safian,
Breaking Barriers in Bos-
ton, Am. Law., May 1990, at 50.
95. See Graham, supra note 94, at 55.
96. See id. at 56.
FORDHAM LAW REVIEW
tive lawyering that often seeks less adversarial modes of
conflict
resolution.97
Unlike the firms of the 1970s, however, the newer women's
firms

82. appear to be prospering. This may have something to do with
the age
of the participants in many of them: they tend to be older, past
the
age of caring for very young children, and possess experience
and con-
nections from practice in firms or government service. 98 Some
earn
fees from types of cases that were not possible in the 1970s,
such as
sexual harassment litigation; others have developed creative
new fem-
inist causes of action out of claims learned from the lawyers'
experi-
ence in corporate legal practice (for example, the successful
RICO
claim against abortion clinic protesters).9 9 Others have
attracted busi-
ness as a result of the new partners' previous prominence in
govern-
ment service. 100 Government agencies and clients with
diversity
commitments (or outright set-aside programs for contractors)
have
also provided opportunities for women's firms. 10 While these
newer
all-women firms represent only a small portion of the legal
profession,
they provide important sources of innovation and potentially of
more
general social change.
2. Feminist Legal Theory and Legal Clinics
A second source of innovation and of theoretical reflection on
inno-

83. vative lawyering has been law school legal clinics, many of
them
staffed by attorneys who left large law firms or other types of
high-
volume practice for political or lifestyle reasons. As the clinical
move-
ment grew, clinicians became well organized, both through the
Clinical Section of the Association of American Law Schools
and a
separate Clinical Legal Education Association. Today,
clinicians hold
multiple conferences each year. Prompted by pressure from
their em-
ployers to produce scholarship as well as by a desire to share
the
pedagogy emerging in clinical settings, clinical conferences
began to
hold sessions on clinical scholarship and even founded a
separate jour-
nal. 1 2 By now, clinical scholarship has produced a large body
of liter-
ature.' 3 Feminist legal theory has played an important role in
this
97. See id.
98. See Jordan, supra note 94, at 5, 7; Pallasch, supra note 94.
99. See, e.g., Jordan, supra note 94, at 5 (describing Sacramento
firm's success in
sex discrimination and sexual harassment cases); Pallasch,
supra note 94 (describing
innovative use of RICO by majority women-owned firm in
Chicago).
100. See Safian, supra note 94 (describing a Boston firm formed
by ex-U.S.

84. Attorneys).
101. See Graham, supra note 94, at 56; Pallasch, supra note 94.
102. The Clinical Law Review: A Journal of Lawyering and
Legal Education is co-
sponsored by the Clinical Legal Education Association, the
Association of American
Law Schools, and New York University School of Law.
103. See generally, e.g., Anthony V. Alfieri, Reconstructive
Poverty Law Practice:
Learning Lessons of Client Narrative, 100 Yale L.J. 2107
(1991) (discussing the notion
of poverty law advocacy as a medium of story telling); Clark D.
Cunningham, A Tale
[Vol. 67
1998] FEMINIST LEGAL THEORY & LAWMAKING 269
scholarship throughout the 1990s, undoubtedly because so many
clini-
cians are women."° Indeed, a sizable group of feminist legal
scholars
has emerged from the ranks of clinicians or former clinicians-
includ-
ing both authors of this article.
Some of the earliest scholarship about feminist lawyering
focused
on whether to use feminist arguments and methods in the
practice of
litigation, as was done, for example, in the "Voices Brief' filed

85. in the
Webster abortion rights case. 10 5 Other practitioner-academics
argued
that the urgency of women's legal needs instead requires
lawyers who
are trained and willing to fight with the weapons used in a legal
system
currently organized around adversarial, win/lose principles."' 6
A simi-
lar controversy has concerned whether women attorneys should
pre-
fer mediation and other modes of alternative dispute resolution
that
embody an ethic of care, as suggested in Carrie Menkel-
Meadow's
early work,0 7 in light of evidence that women and other dis-
empowered groups may be disadvantaged by informal processes.
t 3
Other writers raise feminist concerns about the selection of
clients.' °9
Are there particular types of cases that feminist attorneys
should re-
fuse to take? Is it ethical (although a deviation from current
profes-
sional standards) only to represent certain types of clients-or
only
of Two Clients: Thinking About Law As Language, 87 Mich. L
Rev. 2459 (1989)
(exploring the concept of representation through language,
experience, knowledge,
and personal narrative); Jane M. Spinak, Reflections on a Case
(of Motherhood), 95
Colum. L. Rev. 1990 (1995) (re-evaluating the author's own
lawyering through the
"filter" of motherhood).

86. 104. As of July 1998, there were 837 male clinicians and 616
female. See Electronic
mail from David Chavkin, Chair of the Data Collection and
Dissemination Commit-
tees of the Association of American Law Schools and the
Clinical Legal Education
Association, to Daniel Goldwin, Research Assistant for Cynthia
Grant Bowman (July
23, 1998) (on file with Cynthia Grant Bowman). Thus, women
make up about 42% of
clinical professors. By contrast, according to 1998 ABA
statistics, women make up
only 27.6% of all full-time (tenure, tenure track, or long-term
contract clinical) law
professors. See Official ABA Guide to Approved Law Schools
450 (Rick L Morgan
& Kurt Snyder eds., 1998).
105. See Ruth Colker, Feminist Litigation: An Oxymoron?-A
Study of the Briefs
Filed in Webster v. Reproductive Health Services, 13 Harv.
Women's U. 137, 170-72
(1990). The Voices Brief filed in Webster i. Reproductive
Health Services, a major
abortion rights case before the Supreme Court, relied primarily
upon first-hand ac-
counts of women's experiences with abortion decisions before
and after Roe v Wade.
For excerpts from the Voices Brief, see Becker et al., supra note
3, at 391-94.
106. See Sarah E. Burns, Notes from the Field: A Repl' to
Professor Colker, 13
Harv. Women's L.J. 189, 193 (1990) (arguing that feminist
litigation must instead aim

87. at "transforming established social, economic, political and
legal power relations that
work to the detriment of women," by whatever means necessary
(citation omitted)).
107. See Menkel-Meadow, Portia in a Different Voice, supra
note 44.
108. See, e.g., Trina Grillo, The Mediation Alternative: Process
Dangers for Women,
100 Yale U. 1545, 1600-01 (1991) (noting potential problems
mediation poses to
women).
109. See, eg., Joan Mahoney, Using Gender as a Basis of Client
Selection: A Femi-
nist Perspective, 20 W. New Eng. L. Rev. 79, 85-90 (1998)
(analyzing under different
schools of feminist legal theory a Massachusetts case in which a
female attorney re-
fused to represent a male divorce client).
FORDHAM LAW REVIEW
one gender? Still other articles attempt much more
thoroughgoing
syntheses of the insights of feminist and clinical legal
scholarship.'1"
The implications of feminist lawyering for the professional
relation-
ship has played a central role in this discussion. Clinician
Minna
Kotkin, for example, suggests that the values of care and

88. connection
associated with women need not drive feminist lawyers out of
litiga-
tion but instead can be incorporated, through an "advocacy of
protec-
tion," into the professional relationship-one in which the
attorney is
not distanced from the client and her goals, but acts
empathetically
and assertively on her behalf."' Otherwise, Kotkin points out,
care-
oriented attorneys might all leave the adversarial system and
thereby
remove from it important sources of innovation.
112
Perhaps the best and most helpful feminist scholarship to
emerge
from clinical practice, however, is the analysis of actual clinical
experi-
ence and insights gleaned from feminist legal scholarship. A
good ex-
ample of this type of scholarship is Kimberly O'Leary's 1992
piece,
Creating Partnership: Using Feminist Techniques to Enhance
the Attor-
ney-Client Relationship."3 In this work, O'Leary explicates
three
techniques that have their origins in feminist scholarship: (1)
asking
the "excluded person question" (that is, taking into account the
exper-
iences and values of women and other persons who are
"outsiders");
(2) consciousness raising; and (3) engaging in feminist practical

89. rea-
soning (with more sensitivity to context)." 4 She then applies
them to
actual cases that she and her students have confronted in a law
school
clinic. For each, she describes a clinic case in which the
discovery of
facts or development of a successful legal theory depended upon
use
of these techniques. O'Leary also criticizes her own
performance in a
case that was ultimately unsuccessful from the point of view of
the
client (although litigated in an entirely ethical, professional,
and tech-
nically correct manner from the point of view of traditional
legal
rules), demonstrating how the use of feminist techniques would
not
only have led to more satisfactory results but would also have
consti-
tuted better lawyering. For example, had O'Leary understood
the im-
portance of the Native American and migrant farm cultures in
which
one client lived, the two might have formed a genuine
partnership
around shared values and goals. 115 Such a partnership would
also
110. See generally, e.g., Goldfarb, supra note 2 (exploring
methodological relation-
ship between clinical legal education and feminist
jurisprudence).
111. Minna J. Kotkin, Professionalism, Gender and the Public

90. Interest: The Advo-
cacy of Protection, 8 St. Thomas L. Rev. 157, 169-73 (1995).
112. See id. at 171-72.
113. 16 Legal Stud. F. 207 (1992).
114. Id. at 212. These techniques were described originally in
Katharine T. Bart-
lett, Feminist Legal Methods, 103 Harv. L. Rev. 829 (1990).
115. See O'Leary, supra note 113, at 207-09, 221-22. The client
wanted custody or
visitation with a child she had not seen for more than four
years, but only succeeded
in preventing the child's adoption by the father's wife and
obtaining brief supervised
[Vol. 67
1998] FEMINIST LEGAL THEORY & LAWMAKING 271
have enabled O'Leary to counsel her client more realistically
that
those goals could not ultimately be fulfilled by the legal
system." 6
O'Leary's article reflects an amalgam of theory and practice-
start-
ing from frustrations that arose out of practice, applying
feminist the-
ory, reflecting upon the results, and then drawing conclusions
about
the attorney-client relationship, the appropriate professional
distance,

91. the relevance of extrinsic facts, and what constitutes good
lawyering.
The clinical setting constitutes a forum in which O'Leary can
both dis-
cuss and model innovative lawyering to her students. In this
sense,
law school clinics are perhaps the ideal setting for developing
trans-
formative innovations in the legal profession, because they
encourage
reflective lawyering as a pedagogical tool and provide
laboratories in
which to experiment with more effective lawyering. They are
also a
setting in which the next generation of lawyers is trained.
CONCLUSION
As we have shown, the interrelationship between feminist legal
the-
ory and legal practice is complex and striking. The interaction
ap-
pears in the very genealogy of feminist legal theory, as
practitioners
grappled with women's legal problems and sought new
substantive
legal solutions for them. In this crucible, feminist legal theory
was
born and developed into the variety of more nuanced theories
that
exist today. Similarly, an active dialogue arose among feminist
practi-
tioners and theorists about the nature of the legal profession
because
they were confronted with the problems women encountered in
the

92. practice of law. This dialogue led to a flowering of theory when
the
formal equality approach that brought down the initial barriers
to en-
try into the profession proved inadequate to address the
continuing
obstacles women lawyers faced, both informal and structural.
Theo-
ries of feminist lawyering developed, largely out of cultural
feminist
approaches, and a critique of legal practice, heavily influenced
by
dominance feminism's challenge to the rules and structures
taken as
definitional of the profession. At the same time, feminist
practitioners
accumulated evidence about problems, lobbied for changes, and
ex-
perimented with different ways in which to structure their own
prac-
tice of law. In short, the interrelationship between theory and
practice
has generated and enriched feminist legal theory, resulted in
innova-
tive feminist lawmaking efforts, and produced important
critiques of
the legal profession.
visitation that did not prove very successful; ultimately,
O'Leary withdrew as her at-
torney. See idU at 207-09.
116. See iL

93. Notes & Observations
Fordham Law Review1998Feminist Legal Theory, Feminist
Lawmaking, and the Legal ProfessionCynthia Grant
BowmanElizabeth M. SchneiderRecommended Citation
This exam requires you to think critically about the subjects we
covered in class. I expect you to put some time into this, and
write coherent, well-thought-out answers. An above average
paper will reference readings, class discussions, and debates.
(You might even reference current events, history, etc.) Your
answer to each question should be a minimum of one page in
length (double-spaced) and no more than two pages. None of
your answers may be about the subject of YOUR debate. Poor
grammar or writing style will count against your grade.
There is no time limit on this exam, but it must be turned in by
the deadline. See the exam dropbox in ANGEL for the due date
and time.
**Answer THREE of the following questions, one of which
must be #3 or #4. You must indicate which question you are
answering.
1. We discussed a number of theories in this class: Consensus
or Functionalist Theory, Conflict or Marxist Theory, Due
Process Theory, Crime Control Theory, Critical Legal Studies
Theory, Feminist Legal Theory and Critical Race Theory.
Describe one theory that changed the way you look at things.
Briefly explain the theory, then explain in more detail how it
has changed your perspective.
2. Describe a theory that we discussed with which you
disagree. Briefly explain the theory and explain why you do not
agree with the theory. You may NOT use the same theory (or
opposing theories ex: conflict/consensus or dp/cc) to answer #1
and #2.

94. 4. Discuss a subject discussed or debated during the debate
portion of class about which your opinion has NOT changed
after what you heard or read. Describe your prior opinion, what
you learned to the contrary from the debate and why your
opinion remained unchanged.
5. Whether or not you intend to go into a legal field, the
subjects and theories we have discussed in this class may have
relevance to you in your career. Discuss something you learned
that you will carry with you and use in your future.
Lesson 2: Consensus or Functionalist Theory v.
Conflict/Marxist Theory
In this lesson we take a look at Consensus or Functionalist
Theory v. the Conflict/Marxist Theory.
What will we learn in this lesson?
At the end of this lesson you will be able to:
1. Define consensus theory in your own words
2. Define conflict theory in your own words
3. Cite criticisms of each theory
4. Given an example of a recent case, identify whether the
court, in making its decision, relied strictly on precedent/law or
whether it included other information such as social science or
society's changing values in its decision.
5. Analyze a legal situation using both the consensus and
conflict perspectives.
6. Critically analyze your own inclination toward either the
consensus or conflict perspectives.
Questions?
If you have any questions, please post them to the General
Questions discussion forum (not e-mail), located under the
Communicate or the Lesson tab in ANGEL. Your instructor will
check that discussion forum daily to respond. While you are

95. there, feel free to post your own responses if you are able to
help out another student.
Lesson 2
Consensus or Functionalist Theory v. Conflict/Marxist Theory
Like most dichotomous theory sets, most of us will never be
entirely in one camp or the other. They are intended to be the
extremes on a continuum of thought and most of us will fall in
the middle. We may not always be in the same place. Our place
on the continuum will likely depend on the specific topic or
circumstance which we are discussing.
As you learned from the reading, consensus theory assumes that
we live in a democracy and that our elected officials act in the
interest of the general public. Consensus theorists have faith in
our political and legal systems to advance the best interest of
the most people possible. We do have competing interests, but
that is what keeps our society functioning- these diverse
interests act to keep each other in check. Some prevail some of
the time, others win other times. The pendulum of power swings
back and forth between our two parties, thereby creating
stability. Further it assumes that the U.S. is pluralistic--
meaning that there are diverse groups and that it is the goal of
government to preserve this diversity.
Conflict theorists, on the other hand, believe that there is a
major power imbalance in this society. Interest groups and those
with the most financial resources maintain the power. The
effects on the poor and minorities is devastating as the elite use
the law to keep themselves in power. The wealthy can buy
justice, whereas the indigent are subject to a racist, classist
system that does not work to their advantage.
Discussion
A popular tire company, Sparkrock Tires, distributes tires all
over the world. Several years ago, they learned of an apparent
defect in their newest "W-9" tires. In South America, where
they sold a small number of these tires, the treads were
separating from the tires when the drivers drove 50 m.p.h. or

96. faster in hot weather. When the treads separated, the tires
exploded and the cars were usually forced off the road. Several
people were injured.
That same year, Sparkrock had just made a deal to have these
tires put on every brand new SUV put out by a popular car
maker in the United States. The summer months were
approaching in North America and Sparkrock had a decision to
make. They decided that it would be too costly to recall all of
the W-9 tires. It would be less expensive for the company to
settle out of court with the injured, even though they knew a
number of people would be hurt or killed.
Eighty-eight people were killed and many more injured.
Sparkrock knew that this would happen and made a financial
decision not to take action to avoid it.
Who should go to jail? Should it be the president of the board of
directors or Fred Sparkrock, or whoever law enforcement can
determine made the ultimate decision? Or should no one be
criminally prosecuted?
If you think no one should, consider this: Joe Bombmaker loves
to make bombs and watch them explode. One day, he decided to
place one of his bombs in a high rise building near his home, so
he could watch it explode. Because it was a weekday, he knew,
or certainly should have known, that when the bomb exploded
that people who were working in the building would be hurt or
killed. He in no way intended to hurt anyone, he just wanted to
watch the explosion. Is he more/less guilty than Fred
Sparkrock? Is he more/less to blame? Why? Is there any doubt
that Joe Bombmaker will be criminally prosecuted.
Are these scenarios the same or different? Why?
How do the theories from our reading apply?
The facts of the Sparkrock Tire case as stated in the scenario

97. show a blatant disregard for human life, whether that is a moral
issue, a criminal issue, or both needs to be determined. The
emotional aspect of this particular situation is extremely
difficult. Even with removing that component out, and
addressing just the actions of the company it is obvious that
someone should be held accountable for the actions that led up
to these tragic events, either injury or death.
I would personally categorize this case under private law, which
is defined as both substantive and procedural rules governing
relationships between individuals the law of torts or private
injuries, contract, property, will, inheritance, marriage, divorce,
adoption, and the like (Vago, 10). Additionally, it would be
broken down into I believe both civil and criminal law. Civil
law – as private law, consists of a body of rules and procedures
intended to govern the conduct of individuals in their
relationship with others (Vago, 10). Furthermore, a violation of
the civil statute is called a tort, which are private wrongs for
which the injured individual may seek redress from the court
(Vago, 10).
As mentioned above I would also classify this as a violation of
criminal law as well. Criminal Law – is concerned with the
definition of crime and the prosecution and penal treatment of
offenders (Vago, 11). Keeping in mind that this is a crime of
“public” in nature with multiple plaintiffs as well as the opinion
of Henry M. Hart that a crime that if proven to have taken place
will incur a formal and “moral” condemnation of the
community. This does that, and should be considered under this
classification. While it appears that this can be classified as an
individual crime it is easy to see how this could be categorized
as a criminal crime, with the affects it has had on a community
or the public at large as a whole. Its’ boundaries have no limit
since the manufacturer distributed all across the US and
international. Once they were made aware of the defect and
continued to proceed with its distribution it became a criminal
offense as well as a civil one.
I would certainly charge/ prosecute any members of the

98. organization in management, leadership, directors etc. positions
that were made aware of the defect and failed to act upon it
accordingly. As for the bomb maker, Mr. Bombmaker, I would
certainly charge him as well with a criminal act. His action
while isolated to himself as the defendant certainly lended itself
to the possibility of a wide reach of catastrophic impact. He too
showed blatant disregard for human life. While his for personal
satisfaction and not financially motivated like the Sparkrock
Tires both actions were irresponsible, negligent, and offensive
to the “community at large” Ignoring such behavior would only
allow for more repeat offenders either individually or
companies/ businesses creating more areas of harm and
negligence to the greater good, where morality certainly comes
in to play as well.
This leads into my final point, E’mile Durheims
philosophy on as stated in his thesis, The Division of Labor in
Society, that simply addresses the social order through social
and economic solutions, through solidarity. More specifically he
addresses this through two types of law, repressive and
restitutive. In a society the criminal act offends the collective
group and punishment is then a direct reflection of the act and
wielded to preserve and connect the community or society as a
whole (Vago, 50&51). Keeping with my personal opinion this
does so by the wrong doer being punished and portraying to the
community this type of behavior will not be permitted (Vago,
51).
Lesson 4
Due Process and Crime Control Models
It was not the intent of Herbert Packer, the originator of these
two models, for people to define themselves as subscribing
completely to one or the other. In following excerpt from the
article in which he introduced these concepts Packer makes this
clear. He also explains his intent in creating the two models.
Two models of the criminal process will let us perceive the
normative antinomy at the heart of the criminal law. These

99. models are not labeled Is and Ought, nor are they to be taken in
that sense. Rather, they represent an attempt to abstract two
separate value systems that compete for priority in the operation
of the criminal process. Neither is presented as either
corresponding to reality or representing the ideal to the
exclusion of the other. The two models merely afford a
convenient way to talk about the operation of a process whose
day-to-day functioning involves a constant series of minute
adjustments between the competing demands of two value
systems and whose normative future likewise involves a series
of resolutions of the tensions between competing claims...
...I call these two models the Due Process Model and the Crime
Control Model. . . . As we examine the way the models operate
in each successive stage, we will raise two further inquiries:
first, where on a spectrum between the extremes represented by
the two models do our present practices seem approximately to
fall; second, what appears to be the direction and thrust of
current and foreseeable trends along each such spectrum?
There is a risk in an enterprise of this sort that is latent in any
attempt to polarize. It is, simply, that values are too various to
be pinned down to yes-or-no answers. The models are
distortions of reality. And, since they are normative in
character, there is a danger of seeing one or the other as Good
or Bad. The reader will have his preferences, as I do, but we
should not be so rigid as to demand consistently polarized
answers to the range of questions posed in the criminal process.
The weighty questions of public policy that inhere in any
attempt to discern where on the spectrum of normative choice
the "right" answer lies are beyond the scope of the present
inquiry. The attempt here is primarily to clarify the terms of
discussion by isolating the assumptions that underlie competing
policy claims, and examining the conclusions that those claims,
if fully accepted, would lead to...
... Each of the two models we are about to examine is an
attempt to give operational content to a complex of values
underlying the criminal law. As I have suggested earlier, it is

100. possible to identify two competing systems of values, the
tension between which accounts for the intense activity now
observable in the development of the criminal process. The
actors in this development-lawmakers, judges, police,
prosecutors, defense lawyers-do not often pause to articulate the
values that underlie the positions that they take on any given
issue. Indeed, it would be a gross oversimplification to ascribe a
coherent and consistent set of values to any of these actors.
Each of the two competing schemes of values we will be
developing in this section contains components that are
demonstrably present some of the time in some of the actors'
preferences regarding the criminal process. No one person has
ever identified himself as holding all of the values that underlie
these two models. The models are polarities, and so are the
schemes of values that underlie them. A person who subscribed
to all of the values underlying the other would be rightly viewed
as a fanatic. The values are presented here as an aid to analysis,
not as a program for action...
The Limits of the Criminal Sanctionsby Herbert Packer.
Stanford University Press (c) 1968 by Herbert Packer
Discussion
In 1963, a poor Mexican immigrant named Ernesto was arrested
in 1963 after a woman picked him out of a lineup as the man
who raped and kidnapped her. The police interrogated him for
two hours and he eventually signed a confession. He was not
advised of his right against self-incrimination nor of his right to
an attorney guaranteed by the Fifth and Sixth Amendments
respectively.
Ernesto's attorney objected to the use of his confession at trial
arguing that it was coerced and that he was not informed of his
rights. It was used as evidence against him at trial and he was
convicted of rape and kidnapping and sentenced to twenty to
thirty years in prison for each crime.
Remember, this was in 1963, the Supreme Court had not yet

101. ruled that police must inform suspects of their rights. The Court
had clearly held, though, that the Constitution guarantees that
suspects cannot be denied their rights to an attorney or against
self-incrimination.
YOU ARE THE SUPREME COURT JUSTICE at the time. This
case was appealed and you must decide if the conviction should
stand and this man should go to prison essentially for life or if
you will overturn the conviction and he should go free because
the police should inform citizens of their rights. (Remember this
has not yet been decided)
Does it matter to you if he was beaten? What if he didn't
speak/understand English very well? WHAT WILL YOU DO
and WHY? Does your answer lean toward the due process or
crime control model?
There have been thousands of cases where police lineups have
ended up convicting an innocent people for the crimes they have
never committed. According to the study by American
Judicature Society shows that the eyewitness tends to pick a
person that most resembled the perpetrator in their memory.
Thousands of people have been exonerated from the wrongful
accusation by the Innocence Project through the use of DNA
testing.
Now to the case of Ernesto, Obviously in 1963 there was no
DNA test. As a Supreme Court Justice, I would choose the due
process model because according to the US constitution 5th and
14th amendment everyone has right to defend themselves. I
would review the evidence. If Ernesto did not speak English
well and there was no translator present, I would count his
confession inadmissible. I would look for defensive wounds on
Ernesto’s body because if he tried to rape and kidnap women
she must have done something to defend herself like scratch him
or leave some type of mark on his body. I would listen to her
testimony and try to match with markings on his body.

102. If any evidence matches up, I will leave the decision as is but if
Ernesto has no markings on his body as the women described
then I would overturn the case and set him free.
Lesson 3: Law and Society Theories
As the course title suggests, we are beginning to look at law and
its relationship to society. Like the old question about the
chicken and the egg: Which came first? It is not clear, but what
is clear is that they are interdependent. When social scientists
have studied different societies, they have learned that the more
primitive a society, the less formal law is required. As societies
become more modernized, complicated and heterogeneous, more
formal law is required to keep order.
We will examine the theories you read for today which
represent the various jurisprudential philosophies that judges
hold. Let's think again about these theories through the lens
of how judges decide.
A dichotomy exists that seems to be repeated, although varied
somewhat. That is whether judges exercise mechanical
jurisprudence, which means they apply the correct legal
principle to the facts at hand, or whether they apply a nihilistic
jurisprudence which considers judges to be individuals who are
subject to biases and who make decisions based on their
predilections, or at least based on non-legal considerations,
rather than a scientific application of legal principles.
(Friedrichs, p.77)
What will we learn in this lesson?
At the end of this lesson you will be able to:
1. Explain "solidarity"
2. Explain society's evolution as described by Sir Henry Sumner
Maine
3. Explain the difference in the amount of formal law between
primitive and modern societies
4. Develop and critically defend a position on whether or not
this bias is appropriate
Questions?

103. If you have any questions, please post them to the General
Questions discussion forum (not e-mail), located under the
Communicate or the Lesson tab in ANGEL. Your instructor will
check that discussion forum daily to respond. While you are
there, feel free to post your own responses if you are able to
help out another student.
Lesson 3
Jurisprudence Philosophies
Poultry Market News photo
NOTE: Because your reading for this week contains so much
theory, I have included much more lecture than usual. My
lecture goes back over a lot of what you read which is also very
unusual for this course. The purpose of the following lecture is
to explain some of the theories in greater detail and to show
some practical applications. You will not be required to
memorize each theory. You will, however, need to be able to
explain and apply the ones we discuss in detail. In addition, you
should begin to see that there are, generally speaking, two
opposing views represented by these different schools of
thought. We will look more closely at how the pendulum, if you
will, seems to swing back and forth between them:
As the course title suggests, we are beginning to look at law and
its relationship to society. Like the old question about the
chicken and the egg: Which came first? It is not clear, but what
is clear is that they are interdependent. When social scientists
have studied different societies, they have learned that the more
primitive a society, the less formal law is required. As societies
become more modernized, complicated and heterogeneous, more
formal law is required to keep order.
Jurisprudence
Jurisprudence is defined as the philosophy or science of law and

104. legal relations. (Black's Law Dictionary) Some would contest
that there is a "science" of law, as we will see. At any rate,
jurisprudence encompasses intellectual inquiry about law, legal
principles, and law as it is implemented by legal institutions
and how that may differ from ideal conceptions of law. (Law in
Our Lives. Friedrichs, David O., Roxbury Publishing Company,
2001.)
We will examine the theories you read for today which
represent the various jurisprudential philosophies that judges
hold. Let's think again about these theories through the lens
of how judges decide. A dichotomy exists that seems to be
repeated, although varied somewhat. That is whether judges
exercise mechanical jurisprudence, which means they apply the
correct legal principle to the facts at hand, or whether they
apply a nihilistic jurisprudence which considers judges to be
individuals who are subject to biases and who make decisions
based on their predilections, or at least based on non-legal
considerations, rather than a scientific application of legal
principles. (Friedrichs, p.77)
Lesson 3
Natural Law
Chronologically speaking, the first theory we should discuss
is Natural law. This theory holds that law comes from God or a
higher power, or from an innate sense of morality. A person
subscribing to this theory believes that when laws coincide with
these already existing standards of right and wrong, then they
are good laws. If not, we needn't follow or apply them. Is it ever
ethical to break the law? One example given in your text is pro-
life activists committing violent acts against those
performing/seeking abortions. A less controversial example
might be Rosa Parks. We consider her to be a civil rights hero
because she willfully disobeyed an unjust law. It is easy, in
retrospect, to say that her actions served a higher good.

105. What might be some current examples?
A scenario I often ask students to consider is that of a
prosecutor. Assume you are an elected district attorney in
Pennsylvania and you are ideologically opposed to the death
penalty. A capital murder case (a particularly heinous and brutal
homicide case where the death penalty is a viable and legally
appropriate option) comes across your desk. What do you do?
What if your firmly-held religious beliefs cause you to be
opposed to the death penalty?
Some would argue that you are an elected official in this state
and you are required to do what the law requires. If this crime
meets the conditions of a capital murder case, then you must
prosecute it as such. Others would argue that you were the one
elected and that if the people don't like your position, then they
will not elect you next time (this may assume that you made
your beliefs clear in the election.)
A middle ground might be that of a former prosecutor with
whom I worked. He would request the death penalty, if
warranted by law. He would try the case as usual. However,
when it came time for the sentencing phase of the trial, he
would have one of his assistant prosecutors handle that portion
of the case. Is this appropriate? Is it ethical? Should one's
personal beliefs come into play? All of this falls under the
heading of natural law theory.
Lesson 3
Legal Positivist Theory
Christopher Columbus Langdell
In reaction to natural law theorists, came the Legal Positivist
theory which holds that the legal and moral are completely
separate realms. The validity of law is determined by its source
and the soundness of the process of its enactment, not by a
moral basis. Law school education is still largely based on a

106. belief that there is a science of law. This was originated by
Christopher Columbus Langdell, the dean of Harvard Law
School in the late 19th Century. Langdell invented the case
method of studying law. Its premise is that students of the law
can study appellate decisions and derive from them legal
principles which can then be applied to arrive at a CORRECT
decision for future cases. Most law schools still use this
teaching method, though it has been widely criticized.
(Friedrichs, 82, Vago, p. 361) We will discuss in detail the
merits and criticisms of law school education later in this
course.
Two theorists, Herbert Spencer (a follower of the teachings of
Charles Darwin) and William Graham Sumner subscribed to this
theory. They believed that law should not be used to lift up the
disadvantaged. It should resolve our disputes, and not resolve
moral conflicts. It should merely be applied in a scientific
fashion. Society will, therefore, function the most effectively.
So if legal positivists are correct, then the Nazi's should not
have been tried and convicted. They were leaders carrying out
the law as it was enacted. Natural law theorists would, of
course, say that their laws were in violation of human rights,
but legal positivists could not make this argument. (Friedrichs,
p.80)
Judges following legal positivism apply the law as it stands. If
the facts before the judge are similar enough to a case that has
been decided, then the law of the precedent should be applied.
Those who want to change fundamental law should do so
through elected legislators. The role of the courts is to apply
existing case law. If/when the issue of abortion goes back in
front of the Supreme Court, a justice subscribing to legal
positivism would apply the law as it exists, regardless of
political predilections of the individual justice. Of course, had
the majority of the justices been legal positivists in 1974, Roe
v. Wade would likely have been decided differently.

107. Lesson 3
Sociolegal Theory
Vago next describes Albert Vonn Dicey and his theory about
how public opinion affects legal change. He and
other Sociolegal Theorists began to swing the pendulum again
toward morality, or at least toward the argument that law is not
separate from society.
The first historical example came in a case entitled, Muller v.
Oregon in 1908. In that case, it was argued that there were long
term health effects on women of working excessively long
hours. This was the first time that non-legal arguments were
made in a brief to the court. (A brief is a persuasive document
written to the court) This trend-setting document came to be
known as the Brandeis Brief. The next, and probably more
famous, example of using social science evidence in to bolster a
legal decision was in the United States Supreme Court case
of Brown v. Board of Education. In Brown, evidence was
offered that showed that children were suffering in racially
segregated schools that were previously ruled to be
constitutional under the concept of separate but equal. Plessy v.
Ferguson (cite). The court relied on this evidence in overturning
its former decision and ruling that segregated schools violated
the Equal Protection Clause of the 14thAmendment of the
United States Constitution. (Brown v. Board of Education)
Lesson 3
Legal Realism
This trend toward allowing non-legal evidence leads us to Legal
Realism. Legal Realism is the climax of the opposition to
viewing law as an abstract concept. According to this theory,
judges don't find law, they make it. (Friedrichs, p. 86-88) The
primary proponent of this school of jurisprudence was Justice
Oliver Wendell Holmes. Justice Holmes believed that after
hearing a case, judges make a decision based on what they
believe to be the correct answer. They THEN find the law to

108. support their decision.
An interesting example of this theory from my own experience
was as follows:
I was representing a young woman ("Susan") with a six year-old
daughter in a custody case. When Susan was a teenager, she had
been in a relationship with an extremely violent young man,
whom I'll call Sam. Sam physically, emotionally and sexually
abused her throughout the relationship. In fact, because she
came from a broken home, she moved in with his family. There
his mother and siblings also physically abused her and treated
her as a domestic slave. She eventually was able to escape this
brutal relationship. She met and fell in love with a kind, gentle
man ("Charles.") During her courtship with Charles, Sam
abducted Susan and brutally raped her. That was the last time
she saw him for several years. Shortly after, she and Charles
were married and a few months later, she had a baby. When the
child was five, Charles and Susan divorced, but Charles
maintained a strong relationship with the little girl.
The reason she came to me was because Sam and his mother
found out about her daughter and believed that Sam was the
father. They abducted her at gunpoint and forced her to go to a
medical facility and have a paternity test performed. The result
was that Sam was, in fact, the child's father. He was now suing
for visitation with the little girl.
Because of Sam's and his family's extreme violence, Susan was
asking the court not to grant any visitation to him.
Though Sam was the child's father, I felt compelled to make the
strongest case possible to the court in order to protect this child
from this extremely violent individual. I was concerned that this
would be unsuccessful. I did some legal research and found an
antiquated law called the Presumption of Paternity. This
presumption held that if a child is born during marriage, it is a
legal presumption that the husband is the father. This is true no
matter when the marriage takes place- even if the wedding
occurs during the ninth month of pregnancy! There are only two
ways to rebut the presumption once it is raised. The putative

109. father, Sam, would have to prove that Charles and Susan had no
possibility of sexual contact during the time when the child was
conceived or that Charles was incapable of reproducing. The
reason for this law was to preserve the sanctity of families and
render children legitimate. Arguably, the latter, and maybe both
of these issues are considered to be less important in today's
society. However, the law was still on the books, I argued it in
court and the judge ruled in my client's favor. The paternity test
results were ruled to be inadmissible and Sam's claim was
dismissed.
Because this family was no longer intact, that is Susan and
Charles were no longer married, the reason for the presumption
really didn't apply to this case. Because the judge was aware of
how dangerous Sam was, he wanted to rule to protect the child
and there was law available to enable him to do that
This is, I think, a positive application of legal realism, but of
course it worked to the advantage of my client and what I
thought was morally right....
Could there be negative applications given that reasonable
people often differ regarding what is morally right?
The next group of theorists would argue just this.
Lesson 3
Legal Process Theory and Critical Legal Studies Movement
Legal Process Theory came about in the 1940's as a reaction to
legal realism. It holds that judges should not rule based on their
predilections and biases, rather they should rely strictly on the
law. They should "dispassionately analyze the competing
interests in particular cases and arrive at judgments based upon
procedural consistency." (Friedrichs, p. 89) Current Supreme
Court Justice Ruth Bader Ginsburg is probably the most well-
known proponent of this theory. It may be that this theory has
lost favor due to recent generations that are more skeptical.
(Friedrichs, p.89)
The final swing back, perhaps, is represented by the modern

110. spin-off of legal realism, known as the Critical Legal Studies
Movement (CRITS.) Neo-Marxism and Postmodern thinking
also influenced the founders of the CRITS movement.
Proponents of this theory are not so trusting that the law is a
stand-alone, worthy construct to be blindly followed. They
agree with legal realists that decisions are made based on
judges' predilections, but they aren't necessarily arguing that
this is a good thing. CRITS argue that law is not separate from
politics bias, or prejudice. They maintain that a good lawyer can
make a legal argument to support any position. One can just
find a precedent or law to support any position. A judge who is
inclined to agree will "hang his/her hat" on the precedent
offered. They reject the concept of "false necessity" which
holds that "legal rules objectively dictate certain outcomes."
(Friedrichs, p. 94)
Law, they argue, maintains the status quo, hierarchy and
privilege inherent in our class structure. The goal of CRITS,
then, is to deconstruct this façade of legal formalism and expose
the political agenda at work in our current system.
Lesson 3
Feminist Legal Theory and Critical Race Theory
Two more theories that follow CRITS in the postmodern view
are Feminist Legal Theory and Critical Race Theory. Both are
criticisms of our current system which, they argue, favors the
status quo and current hierarchy. Their focuses vary but the
concepts are similar: Our system has been created and run by
and has benefited white males and others are disadvantaged in
this system. The ultimate question, which is answered
differently by different theorists is what is the solution? Can
our current system be reformed? Or are these biases and
prejudices so inherent in our greater society- of which our
justice system is a microcosm- that change has to occur on the
macro-level before the justice system can be reformed? Penn
State offers entire courses on each of these theories so justice
cannot be done to them as part of one lesson in one course.

111. Feminist Legal Theory asks what, if any, are the fundamental
differences between men and women that affect and are affected
by the law and its application. Further, theorists examine
differences that exist between women. Women are not one
homogenous group, we differ by race, class, age, etc. Most
feminists consider the eradication of all oppression, not only
that based on sex, to be their goal.
For instance, The Berkeley Journal of Gender Law, and Justice
describes its mission as follows:
Our mandate is to publish research, analysis, and commentary
that address the lives and struggles of underrepresented women.
We believe that excellence in feminist legal scholarship
requires critical examination of the intersection of gender with
one or more other axes of subordination, including, but not
limited to, race, class, sexual orientation, and disability.
(Berkeley Journal of Gender, Law and Justice Home
Page. http://www.boalt.org/bwlj/)
Give this one some thought:
You are the judge in a custody dispute. You find out that the
mother has a record for simple assault. The facts are that she
was in a bar on a Monday night watching football when an
obnoxious fan from the opposing team started cheering loudly.
Mother was a little too drunk, so she made a rude comment to
other fan and they ended up in a fist fight. Would you consider
this problematic in considering whether she should be the
primary custodian of her children?
Now assume the exact facts except that it was the Father who
committed this offense. Can you honestly say that you would
see it the exact same way, or do our gender roles create
different standards for men and women?
Some criticize Feminist Legal Theorists by saying that they
want to be treated the same as men sometimes for instance,
equal pay, equal job opportunities, yet better other times- for
example lenient sentencing for women with children. While this
criticism may be compelling, it, feminist legal theorists would
argue still assumes that men are the standard. Instead, many of

112. these theorists want to deconstruct, at least intellectually, our
system that is based on a male-only model. Because your
supplemental reading provides such a full explanation of
Critical Race Theory, I will not expand on it at this time, except
through the use of a practical example. Be sure, that there are
many such examples. I have chosen one particularly thought-
provoking one. The Pennsylvania Supreme Court Committee on
Gender and Racial Bias in the Court System, uncovered quite a
bit of bias in Pennsylvania's justice system. This was one of
most recent of fifty one such committees which conducted
similar investigations at the direction of the United States
Supreme Court.
A number of examples of gender bias were found such as
women lawyers being mistaken for secretaries or court
reporters. Many female lawyers testified before this committee
that male lawyers and judges often referred to them less
respectfully i.e. names such as "honey" or "sweetie," or by
referring to them by first names whereas male attorneys were
addressed using their last names, i.e. Mr. Smith. Both women
and men of color cited numerous examples in testimony to the
committee of racially biased comments and behavior. A Black
female lawyer in a business suit was mistaken by the judge for
the client while her white client, who was dressed in jeans, was
addressed as the attorney. African American female attorneys
were often mistaken for court reporters, as well. The relevant
question, of course, is whether this treatment- whether it be
considered to be chivalrous or discriminatory- affects case
outcomes, and the evidence showed that it does
It was also found that litigants suffered from gender bias.
For example, a woman and a man both requesting custody of
their child will be looked at differently by the court for
committing the same transgressions. The example given in

113. testimony was that a judge will view a woman who has a
criminal record for drug use much more harshly than a man with
the same criminal record.
On the issue of racial bias, a very interesting situation was
reported.
In an inner city judicial district, the following was occurring. In
an effort to be "culturally sensitive," social workers for the
county children's services agency were trying to be more
understanding when corporal punishment was being used on
African American children. They believed that Black families
use more physical discipline as part of their culture and so they
wouldn't remove children from Black families as readily as they
would with White children.
What do you think?
You have reached the end of this lesson. Now, please read the
reading assignment for this lesson. Close this window to return
to ANGEL to complete the lesson activities.
Lesson 3
Answer
Is this violating the Black children's right to equal protection
under the laws? These Black children are being subjected to
serious physical injury that their White counterparts are not.
(The standards are very high before children are removed from
their families.)
Back
Discussion
Several years ago, the following occurred. The necessary
background for this discussion was something like the
following:
The town of Chocolate is named for its chocolate factory, which
has expanded to the Chocolate Candy Company. John
Chocolate started this business and then created a charity which

114. is a school for troubled children. This school is funded mostly
from the proceeds of the chocolate company. Several years ago,
the board of directors of the charity decided that it would be in
its financial best interest of the charity to diversify its financial
assets- in case chocolate stopped being profitable. The way
John Chocolate structured things, the board of directors of the
charity holds controlling majority of shares of stock in the
chocolate company, and so they decided to sell Chocolate
Candy Company. When they made their intention public, the
people of the town of Chocolate panicked. This town would be
practically non-existent without this company which employs
many of the local population. Many more are employed in
businesses which exist because of the tourist traffic- brought in
by Chocolate Candy Company, Chocolate Amusement Park,
Chocolate Gardens, etc. The company buying Chocolate Candy
Company has announced its plans to move production overseas.
So the then Attorney General of the state, a lawyer named Joe
Hunter, brought a law suit against the Board of Directors of
Chocolate Candy Company to stop the sale of the company. He
found a law to argue which was created under the concept
of parens patriae. This law says that the state can step in and
act as a "parent" if it is believed that a charity, in this case, is
acting against its own best interest. The purpose behind this is
that charities are often not run by the most adept business
persons and they make mistakes. The state has a responsibility
to its citizens to keep charities functioning- for the greater
good. In this case, though, everyone would agree that the
charity was acting in its own best interests. The proceeds from
the sale of this company would keep it financially afloat
indefinitely. This, however, was probably the only basis that
the lawyer could find to try to stop this sale.
Incidentally, Attorney Joe Hunter was running for governor of
the state in the next election. So he brought a court action
asking the court to stop this sale and using this parens patriae
law as the basis for his request.

115. Saving this town would certainly win him the votes of this
constituency.
You are the elected judge. This city is in your jurisdiction.
How will you rule? Why? Is this appropriate? Apply any
relevant theories from the readings or lecture.
As the elected judge of town of Chocolate, I would rule in favor
of the Joe Hunter. By siding with Joe Hunter I would be able to
save the town as well as the charity. Moving the factories
overseas will mean destruction of Chocolate town. With no
chocolate attraction and amusement park, there would be no
tourism resulting in loose of jobs, homes, and end of the charity
school for troubled children. According to Parens Patriae Law,
power of the state to act as guardian for those who are unable to
care for themselves, such as children or disabled
individuals. (Nolo, 2016). Since Chocolate town is on run on
charity and was built for the purpose of helping troubled kids,
the government has a right to restrict the board of directors
from moving the chocolate factory to overseas to increase
profits so they can make more money.
Functionalist theory would be the most likely be suitable in this
case because it analysis the law for the society. “Proponents of
this approach ask specific questions such as: What does a
kinship system do for society? What does law do for society?
What are the “func-tions” of government, of social classes, or
of any social phenomenon?” (Vago, 59) In this scenario
government took control of the town for the greater good of the
residents and to protect them from losing their homes.
https://www.law.cornell.edu/wex/parens_patriae
Law and Society by Vago