Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, March 24, 1991 TAG: 9103240242
SECTION: HORIZON PAGE: B-2 EDITION: METRO
SOURCE: BY TERRY PRISTIN LOS ANGELES TIMES
DATELINE: LENGTH: Long
In a child custody case, a Ventura, Calif., County judge rules a boy should go to the parent whose business is more established. Generally, a guideline like that would favor a man.
A federal court voids a California law requiring employers to reinstate female workers following maternity leave. The court holds that employers would be subject to discrimination suits from men who do not receive the same treatment after an unpaid leave of absence.
A woman complains of sexual harassment by a co-worker but a federal judge in Northern California dismisses the case, finding the man's behavior "isolated and genuinely trivial."
With evidence like that, feminist scholars are arguing that the legal system reflects male values because it was not designed with women in mind.
Feminist ideas are starting to take hold in such areas as sexual harassment, pregnancy benefits, employment discrimination, domestic violence and family law. Casebooks and journals now routinely use the pronoun "she" instead of "he" when referring to hypothetical judges and lawyers.
But some feminist legal theorists, claiming that women's values are in many ways different from men's, are going beyond these so-called women's issues - questioning the appropriateness of an adversarial legal system and advocating an overhaul of traditional legal branches such as negligence law. "Women are unhappy having to be aggressive gladiators," said Carrie Menkel-Meadow, a University of California, Los Angeles, law professor.
Even as they rankle traditionalists and encounter resistance at many law schools, feminist legal scholars are making headway.
In the Ventura County child custody case, Los Angeles lawyers Christine Littleton and Sheila Kuehl last year convinced an appeals court that the ruling reflected gender bias. "Any rule based on the relative wealth of parents will almost invariably favor men," the 2nd District Court of Appeal said in reversing the lower court.
In the pregnancy leave case, the U.S. Supreme Court in 1987 upheld the California law on grounds that "it allows women, as well as men, to have families without losing their jobs."
In the sexual harassment case, decided in January, the U.S. 9th Circuit Court of Appeals reversed the lower court. In the process the legal system's long-held "reasonable man" standard took a beating.
For years, courts spoke of a "reasonable man" when trying to establish an objective standard for how people should behave. More recently, judges have simply substituted the word "person" for "man." But in the recent case, the appeals court ruled that that the lower court must consider how a "reasonable woman" - rather than reasonable person - might respond to unwanted advances from a co-worker.
"A sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women," wrote Judge Robert Beezer for the 2-1 majority. What might seem like trivial behavior to a man could be frightening and upsetting to a woman, the court said.
Heavily influenced by the work of social scientist Carol Gilligan of Harvard's Graduate School of Education, feminist scholars say the law perpetuates a "male" value system of abstract rules, rights and hierarchies, often at the expense of "female" values based upon relationships, responsibilities and caring.
Research by Gilligan and others suggests that men tend to value individual rights over duties that might interfere with their freedom, while women - some think because of their role as childbearers and the socialization process for young girls - tend to emphasize people's dependence on each other.
That a bystander is not legally required to come to the aid of an accident victim is often cited as a classic example of masculine thinking. A legal system that encourages concern for each other's safety would never contain such a doctrine, argued law professor Leslie Bender of Syracuse University.
So intense is the interest in feminist law that legal journals in the field are proliferating at schools all over the country, as are courses and conferences in feminist legal thought. A recent bibliography on women and legal scholarship lists 71 pages of books and articles.
As many as 100 scholars are contributing to feminist legal literature, estimates Littleton, who teaches at UCLA. "When I first started doing this work, we all knew each other," she said. "Now I can't read everything that feminist legal theory comes up with."
Some feminist law review articles are peppered with words like "patriarchy," "male supremacy" and "phallocentrism." While most scholars avoid such inflammatory language, many do hold provocative views about the relationship between men and women.
Most believe it is self-evident that women are dominated by men. Some, but by no means all, share the philosophy of the University of Michigan Law School's Catharine MacKinnon, who argues that sexual violence against women is pervasive. In the view of MacKinnon, often described as the most influential feminist legal scholar, much of what passes as consensual sex between men and women could more properly be described as rape.
In some ways, however, the legal scholars have veered from some decades-old feminist concepts - for example, the commitment to unswervingly equal treatment of men and women.
The "equalist" approach is often seen as placing women at a disadvantage. Many feminists believe, for example, that women should be able to benefit from affirmative action or separate women's schools - notions seemingly in conflict with equal treatment of both sexes.
Feminist legal scholars now say women and men must sometimes be treated differently in order to achieve equal results. Women, for example, are likely to find it more difficult than men to both keep their jobs and fulfill their parental duties unless special accommodations are made for them. But "equalists" - generally practicing lawyers rather than academics - worry that treating women as a special class might be a step backward.
At many law schools, feminists have struggled for acceptance - and tenure. "A lot of law schools are terrified of them," said Steven Shiffrin, a respected constitutional scholar at Cornell Law School who agrees that "the law was developed with a male standard in mind."
by CNB