Martha Albertson Fineman

The Vulnerable Subject: Anchoring Equality in the Human Condition

This essay develops the concept of vulnerability in order to argue for a more responsive state and a more egalitarian society. Vulnerability is and should be understood to be universal and constant, inherent in the human condition. The vulnerability approach is an alternative to traditional equal protection analysis; it represents a post-identity inquiry in that it is not focused only on discrimination against defined groups, but concerned with privilege and favor conferred on limited segments of the population by the state and broader society through their institutions. As such, vulnerability analysis concentrates on the institutions and structures our society has and will establish to manage our common vulnerabilities. This approach has the potential to move us beyond the stifling confines of current discrimination-based models toward a more substantive vision of equality.

The Public Nature of Private Violence

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At the boundaries of law : feminism and legal theory

Introduction Martha Albertson Fineman. Part 1. Perspectives from the Personal 1. Reasonable Women and the Law Kathleen A. Lahey 2. On being the Object of Property Patricia J. Williams 3. Subordination, Rhetorical Survival Skills and Sunday Shoes: Notes on the Hearing of Mrs G. Lucie E. White Part 2. The Construction of Body in Law 4. The Body in Legal Theory Judith E. Grbich 5. Intimacy and Responsibility: What Lesbians Do Claudia Card 6. Fallen Angels: The Representation of Violence Against Women in Legal Culture Kristin Bumiller Part 3. Recognising Pleasures and Pains 7. The Difference in Womens Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory Robin L. West 8. Feminism, Sexuality and Authenticity Ruth Colker 9. The Problem of Privatised Injuries: Feminist Strategies for Litigation Adrian Howe Part 4. Recasting Womens History 10. The Unbroken Circle: A Historical Study of Black Single Mothers and their Families Barbara Omolade 11. Religion and Rights Consciousness in the Antebellum Womans Rights Movement Elizabeth B. Clark 12. Social Feminism and Legal Discourse, 1908-1923 Sybil Lipschultz Part 5. Perspectives on Marriage and Family 13. Homework and Womens Rights: The Case of the Vermont Knitters, 1980-1985 Eileen Boris 14. Abandoned Women Mary Coombs 15. Societal Factors Affecting the Creation of Legal Rules for Distribution of Property at Divorce Martha Albertson Fineman Part 6. Feminist Strategies Within Legal Institutions 16. Feminism and Legal Method: The Difference it Makes Mary Jane Mossman 17. The Dialectics of Rights and Politics: Perspectives from the Womens Movement Elizabeth M. Schneider 18. Strategizing in Inequality Diana Majury. References. Books and Articles. Cases. Notes on Contributors.

Masking Dependency: The Political Role of Family Rhetoric

Despite widespread changes to family structure and the increase of women in the workforce, the vision of a traditional family consisting of a male breadwinner formally married to a female homemaker who cares for the couple’s biological children continues to pervade contemporary political and legal discourse and drive policy decisions. Such a vision masks the nature and extent of individual dependency and the costs of providing care for dependents. Dependency has been privatized, with the family expected to serve as the repository of dependency without assistance from the market or state. This Article argues that continued adherence to unrealistic and unrepresentative assumptions about family thwarts society’s ability to effectively address persistent problems of poverty and social welfare and obscures the reality that women, whether acting within a nuclear family or as single mothers, largely assume responsibility for dependents. Family policy should instead provide social and economic subsidies that reflect the family functions that society should protect and encourage. Because of the inevitability and universality of dependency, the Article asserts that a just society requires that the community provide for its weaker members and grant resources to those caretakers who fulfill the societal need for caretaking at substantial cost to themselves.

Equality: Still Illusive after All These Years

This essay will be a chapter in Social Citizenship and Gender, edited by Joanna Grossman and Linda McClain (Cambridge University Press 2009). It addresses the anomaly that after four decades of using the ideal of equality to confront gender-skewed distributions of power we, still we find a politics of gender subordination and domination embedded in society and its ideological and structural institutions, including law. Why is it that the realization of gender equality - even after all these years of theorizing, arguing, and strategizing - remains strangely illusive? Part of the answer is found in the fact that in our ongoing struggle for gender equality we have been constrained by philosophical and jurisprudential concepts shaped and handed down to us by our forefathers. This chapter proposes that one way to render equality less illusive is to move beyond gender and build a more comprehensive framework on the concept of universal human vulnerability. This new theoretical investigation will focus on privilege, as well as discrimination, and reflects on the benefits allocated through the organization of society and its institutional structures. Such an approach could move us closer to securing substantive equality and social rights in the United States.

Homeschooling: Choosing Parental Rights Over Children's Interests

Homeschooling, the most extreme form of privatization of education, often eliminates the possibility of the child gaining the resources essential for success in adult life. It sacrifices the interests of the child to the interests of the parents, allowing them to control and isolate the child’s development. In addition, homeschooling frustrates the state’s legitimate interest in the child’s receiving a sound, diverse education, so that the child can achieve her potential as a productive employee and as a constructive participant in civic life. This Article uses vulnerability theory as a heuristic frame both to reexamine the dominant rhetoric of parental choice and to underscore the importance of a robust sense of state responsibility for the nature and content of education. It discusses the harms to the individual child and the larger society that might result when that responsibility is ignored. Finally, because privatizing education is often framed in economic terms, the final section argues that homeschooling is inefficient because competition in the market for education leads to market failure. For all of these reasons, homeschooling should be prohibited, as it is in many other countries.