Two Models of the Criminal ProcessHERBERT L. PACKERSource R.docx

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

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

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

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

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

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

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

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,

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

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.

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.

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

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.

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

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

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-

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

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”

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

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.

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.

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

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.

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.

Two Models of the Criminal Process
12
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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
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Legal Theory, Feminist Lawmaking , and the Legal Profession,
67 Fordham
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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-

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

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).

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

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

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

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

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

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

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

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

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
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

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

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-

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-

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

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

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
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

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

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).

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

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

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

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
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-

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

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).

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

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

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
rative, and egalitarian manner and would structure the

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

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).

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

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

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

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
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

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)

(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

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.

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,

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

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
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-

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