Recovering Socialism for Feminist Legal Theory in the 21 St Century Cynthia Grant Bowman Cornell Law School, [email protected]
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Cornell University Law School Scholarship@Cornell Law: A Digital Repository Cornell Law Faculty Publications Faculty Scholarship 11-2016 Recovering Socialism for Feminist Legal Theory in the 21 st Century Cynthia Grant Bowman Cornell Law School, [email protected] Follow this and additional works at: http://scholarship.law.cornell.edu/facpub Part of the Law and Gender Commons, Law and Society Commons, and the Women's Studies Commons Recommended Citation Cynthia Grant Bowman, "Recovering Socialism for Feminist Legal Theory in the 21 st Century," 49 Connecticut Law Review (2016) This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Faculty Publications by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. CONNECTICUT LAW REVIEW VOLUME 49 NOVEMBER 2016 NUMBER 1 Article Recovering Socialism for Feminist Legal Theory in the 21 st Century CYNTHIA GRANT BOWMAN This Article argues that a significant strand offeminist theory in the 1 9 1970s and 80s-socialistfeminism-haslargely been ignoredby feminist jurisprudence in the United States and explores potential contributions to legal theory of recapturing the insights of socialistfeminism. It describes both the context out of which that theory grew, in the civil rights, anti-war, and anti-imperialiststruggles of the 1960s, and the contents of the theory as developed in the writings of certain authors such as Heidi Hartmann, Zillah Eisenstein, andIris Young, as well as theirpredecessors in the UK, and in the practice of socialistfeminist groups in the United States during the same period. Although many American feminist legal theorists themselves participatedin or were influenced by the progressive movements of the 1960s and 1970s, socialistfeminism is virtually absentfrom their writings, except for those of CatharineMacKinnon, who, despite sympathy with the approach, disagreed with it and went on to develop her own version of feminist equality theory. The author argues that the time is now ripe to recapture this strandoffeminism and explore what it would add to the study andpursuit of women's equality. ARTICLE CONTENTS IN TR O DU C TION ........................................................................................ 119 I. HISTORICAL BACKGROUND .............................................................. 120 A. MARXISM AND LAW AND FEMINISM ............................................... 121 B. THE WOMEN'S MOVEMENT IN THE U.S. IN THE 1960s AND 1970s. 123 C. THE DEVELOPMENT OF SOCIALIST FEMINIST THEORY IN THE 1970S AN D 1980S ......................................................................................133 D. SOCIALIST FEMINIST THEORY DID NOT DISAPPEAR FROM THE A CAD EM Y ....................................................................................... 149 11. SOCIALIST FEMINISM AND THE LEGAL ACADEMY ................... 155 A. THE DEVELOPMENT OF FEMINIST LEGAL THEORY IN THE LEGAL ACAD EM Y ....................................................................................... 156 B. HINTS OF SOCIALIST FEMINISM IN THE EMERGING FEMINIST LEGAL T H EORY ..........................................................................................158 1II. THE UNEXPLORED POTENTIAL OF SOCIALIST FEMINIST LEGAL T H E O RY ............................................................................................... 164 C ON C LU SION ............................................................................................ 169 Recovering Socialism for Feminist Legal Theory in the 21 st Century CYNTHIA GRANT BOWMAN* INTRODUCTION Bernie Sanders's popularity notwithstanding, it has long been the accepted wisdom that there is no tradition of socialism in the United States. Numerous authors have pointed to the absence of a Left political tendency expressed in a social democratic or Labour Party here, as there are in the U.K. and continental European countries.' There was, however, a vibrant tradition of socialist feminist theory during the 1970s and 1980s. Yet this tradition did not make its way into the legal academy along with the feminist women who developed the field of feminist legal theory. This Article is an attempt to recapture this lost strand of feminist theory and to suggest ways in which its recovery would be helpful to the agenda for both research and legal reform. Many of the first generation of feminist legal theorists came of age during a period of intense political activity and were active in civil rights, antiwar, and feminist groups.2 During the 1960s and 1970s, many of these groups were heavily influenced by Marxist and socialist theory, and thus activist women were presumably well-versed in it. When these feminists went to law school, they were influential in establishing courses about women and the law, advancing litigation on behalf of women, and developing the field of feminist jurisprudence. Yet, with a few exceptions, socialist feminism appears to have been forgotten in this development. Although socialist feminist theory was quite highly developed during the 1980s and has continued to be refined in academic disciplines other than Dorothea S. Clarke Professor of Law, Comell Law School. I am grateful to so many people for the suggestions that have found their way into this article, including Ben Altman, Bernardine Dohm, David Gilbert, Aziz Rana, Anna Marie Smith, Sidney Tarrow, and Qiu Zhaoji, as well as all my Cornell Law School colleagues who commented on it at our January 2016 faculty retreat. I am also grateful for the wonderful resources of the Cornell University Law Library and especially for the clever and continuing assistance of law librarian Amy Emerson. 'See WERNER SOMBART, WARUM GIBT ES IN DEN VEREINIGTEN STAATEN KEINEN SOZIALISMUS? (1906); Seymour Martin Lipset, Why No Socialism in the United States?, in 1 SOURCES OF CONTEMPORARY RADICALISM 31 (Seweryn Bialer & Sophia Sluzer eds., 1977); Eric Foner, Why Is There No Socialism in the United States?, 17 HIST. WORKSHOP 57 (1984). 2 See, e.g., Cynthia Grant Bowman, The Entry of Women into Wall Street Law Firms: The Story of Blank v. Sullivan & Cromwell, in WOMEN AND THE LAW STORIES 415, 419-21 (Elizabeth M. Schneider & Stephanie M. Wildman eds., 2011) (describing the backgrounds of the founders of New York University Law School's Women's Rights Committee). CONNECTICUTLAW REVIEW [Vol. 49:1 law, that branch of feminist thought is not overtly present in feminist jurisprudence. In Section I below, I set the historical background, giving a brief introduction about Marxism and law before describing the women's movement in the United States in the 1960s and 1970s and its relationship to the New Left. As women's groups broke off from New Left groups for a variety of reasons, many of the independent organizations they founded were avowedly socialist in orientation, devoted to the idea that socialism and genuine equality for women were necessarily linked. I describe the theory those women developed, including the contrast between dual systems and unified systems theories, as well as the political strategies they embraced as a result. I also briefly describe how feminist socialist theory was influential in women's studies and continued to be developed by theorists in disciplines such as political science and philosophy. In Section H1,I discuss the virtual absence of socialist feminist theory in feminist jurisprudence, which came to be categorized into liberal, radical, cultural or relational, critical race, and a variety of post-modem approaches. While there are some indications that early feminist legal theorists were familiar with socialist feminist thought, the primary injection of Left legal theory into law schools was by adherents of the Critical Legal Studies movement, from whom Left-leaning feminist scholars soon broke away, to continue their inquiries as "femcrits," "racecrits," or "Latcrits." The insights of the 1980s socialist theorists, however, appear to have been largely lost. As a working definition of socialism for the purposes of this Article, I propose that it is a theory that includes (1) an analysis that sees economic forces as the primary, although not sole, drivers of history; (2) the idea that capitalism is incompatible with full human flourishing, especially for women; and (3) a goal of using the state to democratize both the economy and society, so that basic human needs are given priority over profits. Based on this definition and the socialist feminist scholarship discussed below, in Section IlI, I describe the contributions socialist feminism could make to feminist legal theory. I also suggest, for a variety of reasons, that the time may be ripe for a revival of this strand of feminist theory. 1. HISTORICAL BACKGROUND Understanding the context that nurtured many early feminists in the 1960s and 1970s requires both a basic familiarity with Marxism and its relationship to feminism and law, and some understanding of the history of the women's movement in the United States during those decades. After laying that foundation, I describe the development of socialist feminist theory at that time, including its break from orthodox Marxist theory and New Left groups. To appreciate the insights of this new school of thought, I examine the work of theorists who played key roles in its evolution in the United States, such as Heidi Hartman, Zillah Eisenstein, Iris Young, Nancy 2016]