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Feminism and Adaptive Heroinism: the Paradigm of Portia As a Means of Introduction

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Feminism and Adaptive Heroinism: the Paradigm of Portia As a Means of Introduction Tulsa Law Review Volume 25 Issue 4 Symposium on Feminist Jurisprudence Summer 1990 Feminism and Adaptive Heroinism: The Paradigm of Portia as a Means of Introduction Jane Maslow Cohen Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Jane M. Cohen, Feminism and Adaptive Heroinism: The Paradigm of Portia as a Means of Introduction, 25 Tulsa L. J. 657 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol25/iss4/1 This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Cohen: Feminism and Adaptive Heroinism: The Paradigm of Portia as a Mean TULSA LAW JOURNAL Volume 25 Summer 1990 Number 4 FEMINISM AND ADAPTIVE HEROINISM: THE PARADIGM OF PORTIA AS A MEANS OF INTRODUCTION* Jane Maslow Cohent I. INTRODUCTION A. Feminist jurisprudence is young, ambitious, and energetic. In this, * Copyright © 1990 by Jane Maslow Cohen. I Professor of Law, Boston University School of Law; B.A., 1967, Wellesley College; J.D., 1971, Yale University. This essay is dedicated, with great thanks, to the three adaptive heroines who willed it into being: Laura Gonsalves, Ann Mesmer, and Julie Cheit Ross. I owe an abundance of further thanks to Kate Bartlett, Derek Parfit, Margery Sabin, Larry Sager, and my now-immortal uncle, Max Blatt (1905-1990), for their comments on earlier drafts; to the staff of The Folger Shakespeare Library for their bibliographic assistance; to William Kaleva for his devoted, and often ingenious, technical aid, and to Anita Lalwani for her energetic research assistance. A special acknowledgment, and much admiration, goes to Professor Maijorie Garber, whose year-long Shakespeare course provided the foundation, the inspiration, and in some instances, the germinal insights for this work. Lastly, I owe a peculiar form of gratitude to the Tulsa Law Journal editorial staff for their willingness to honor a pair of my neo-romantic affectations, of which this mention constitutes a warning to the reader: This essay opens onto its theme in the manner of the essays I most admire outside of law, that is, the argument flows out of itself without an initial restatement or "road map." Moreover, other authors' works are cited as in other literatures, that is, without the parenthetical one-liners used to wedge their theses into thimbles. It is my hope that the over-all distribution of burdens and benefits that is the essay justifies these taxes on the reader's patience. Published by TU Law Digital Commons, 1989 1 Tulsa Law Review, Vol. 25 [1989], Iss. 4, Art. 1 TULSA LAW JOURNAL [Vol. 25:657 its first decade of existence,1 it has attacked the sanctity of privacy,2 de- bated the meaning and sufficiency of equality,3 and questioned the jus- tice, indeed, the plausibility, of neutrality.' But these are, in some sense, among legal feminism's5 more conventional projects, despite the special 1. Feminist activity with regard to law reaches back at least as far as the pressures that wo- men, even as non-voters, were able to bring to bear on mid-nineteenth century state legislatures, pressures that helped to generate thS passage of the Married Women's Separate Property Acts in successive states. Contemporary feminist lawyering truly began to mature with the abortion test case litigation that led to Roe v. Wade, 410 U.S. 113 (1973). Feminist jurisprudence, the develop- ment of wide-ranging theoretical work by feminists about law, was jump-started as a distinct scho- lastic endeavor by Catharine MacKinnon's paired essays Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 SIGNS 515 (1982) [hereinafter MacKinnon, An Agenda for Theory], and, more particularly, Feminism, Marxism, Method, and the State: TowardFeminist Jurisprudence, 8 SIGNS 635 (1983). I do not mean by this to slight other contemporary path-breakers, some of whom may actually have published ahead of MacKinnon; nonetheless, the roses seem to me to belong to her for the sheer galvanism of her early work. 2. The arresting reformulation of privacy as "an injury got up as a gift" is also Catharine MacKinnon's, as a matter of contemporary jurisprudence, though Elizabeth Clarke's forthcoming work on nineteenth-century American feminism will discuss, inter alia, the manner in which this theme was strongly sounded at the inception of the feminist movement by Elizabeth Cady Stanton, among others. See, ag., C. MACKiNNON, FEMINISM UNMODIFIED: DIsCoURsEs ON LIFE AND LAW 100-02 (1987). 3. Within legal feminism, the status of formal equality is in dispute as a matter of doctrine, theory, and value. Its prime competitors include unequal ("special") treatment deferential to biolog- ical difference, a mixed regime of equal and special treatment sensitive to context, and a use of standards untethered to notions of abstract equality. Four illuminating expositions of these positions are found in Becker, Prince Charming:Abstract Equality, 1987 Sup. Cr. REV. 201; Ginsburg, Some Thoughts on the 1980's Debate over Special Versus Equal Treatment for Women, 4 LAW & INEQUALITY 143 (1986); Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955 (1984); and Williams, The Equality Crisis: Some Reflec- tions on Culture, Courts, and Feminism, 7 WOMEN'S RTs. L. REP. 175 (1982). Catharine MacKinnon takes a fifth position, arguing that legal treatment predicated on either the sameness or the biological differences between men and women reinforces male dominance. See C. MAcKiNNON, supra note 2, at 32-40, 71-77. 4. The pedigree of "neutrality" as a source of descriptive and normative ferment long pre- dates the advent of feminist jurisprudence. It figured prominently in the scholarly attentions of Herbert Wechsler and Alexander Bickel. More recently, it has energized, and been re-energized by the legal realists and, still more recently, the Critical Legal Studies clan. Two versions of legal feminism's contributions to this area belong to Martha Minow and Judith Resnik. See Minow, The Supreme Court, 1986 Term-Foreword:Justice Engendered, 101 HARV. L. REV. 10 passim (1987); for an abbreviated treatment, see Minow, Feminist Reason: Getting It and Losing It, 38 J. LEGAL EDUC. 47 (1988) [hereinafter Minow, FeministReason]. See Resnik, On the Bias: Feminist Reconsid- erationsof the Aspirationsfor Our Judges, 61 S. CAL. L. REv. 1877 (1988). Resnik's article engen- dered a "comment" by Patricia Cain which provides yet a third feminist view on the issue. Cain, Good and Bad Bias: A Comment on Feminist Theory and Judging, 61 S. CAL. L. REV. 1945 (1988). 5. Although the term "feminist jurisprudence" is commonly used to situate much of femi- nism's theoretical activity within the domain of contemporary jurisprudence, it seems to me the term "jurisprudence" is losing definitional focus and that, even by the light of a relaxed definition, not all of the important contributions of feminists to legal thought should or seem intended to be regarded as jurisprudential. Therefore, I prefer in what follows to employ such terms as "feminist legal schol- arship," "feminist theory," "feminist practice," or "feminist lawyering," where the particularities of the discussion call for them, and otherwise to refer to feminism's generic activities within law, as I do in the text, by my preferred term, "legal feminism." For other, more provocative concerns about the propriety of the term "feminist jurisprudence," https://digitalcommons.law.utulsa.edu/tlr/vol25/iss4/1 2 Cohen: Feminism and Adaptive Heroinism: The Paradigm of Portia as a Mean 1990] FEMINISM AND ADAPTIVE HEROINISM dimensions that feminist perspectives bring, as privacy, equality, and neutrality are matters of perennial interest within contemporary jurispru- dence, linking its various strands through a network of common concerns. Other enterprises-the critique of law as a manifestation of "patri- archy,"q6 and "woman" as a category of meaning,7 for example-are the children of feminist jurisprudence to the exclusion of jurisprudence more generally, though some of them have incubated in the protective warmth of a feminist theory more capacious than any single discipline such as law. An interdisciplinary feminist focus has itself become a feature of legal feminism.' So has an intra disciplinary endeavor: the production, in co-venture with minority legal scholars, of a newly voiced, newly emotive see West, Jurisprudenceand Gender, 55 U. Cm. L. REv. 1, 4 (1988) and Cain, Feminist Jurispru- dence: Grounding the Theories, 4 BERKELEY WOMEN'S L.J 191, 193-95 (1989-1990). 6. The critique of male-dominated law and, more pointedly, legal rules that disfavor women is such a widely-embedded aspect of legal feminism that to trace its lineage would be daunting and perhaps unuseful. Having said this, it does seem reasonable to indicate that Catharine MacKinnon has been a seemingly indefatigable exponent of this stance, from her earliest work through her most recent, TOWARD A FEMINIST THEORY OF THE STATE (1989). For a brief, invigorating tour of MacKinnon's argument by a passionate defender of her work, see Olsen, Feminist Theory in Grand Style (Book Review), 89 COLUM. L. REv. 1147 (1989). For a brief, invigorating tour of MacKin- non's general argument by a shrewd and not unfriendly critic, see S. FISH, Introduction:Going Down The Anti-FormalistRoad, in DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES 16-25 (1989). A useful collation of non-legal feminist source materials on patriarchy can be found in Bender, A Lawyer's Primeron Feminist Theory and Tort, 38 J.LEGAL EDUC. 3, 6 n.7 (1988). 7. That a universalistic, categorical view of "woman" is deficient in its failure to accommodate differences in experience, interests, and identity among women of different races, classes, sexual pref- erences, and other attributes has become an increasingly debated concern among legal feminists; see, e.g., Minow, Feminist Reason, supra note 4, at 49-53; see also Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN.
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