Professional Documents
Culture Documents
LAURA A. ROSENBURY*
How does law participate in the construction of gender? How should
law participate in the construction of gender? Who wins and who
loses?
* Dean and Levin, Mabie & Levin Professor of Law, University of Florida Fredric G. Levin
College of Law.
1
See, e.g., Murder Jolts Haven for Elite in Boston Area, N.Y. TIMES (Apr. 9, 1991), available at
http://www.nytimes.com/1991/04/09/us/murder-jolts-haven-for-elite-in-boston-area.html.
2 At the time, my exposure was limited to chapters of MacKinnons book Feminism
Unmodified and Wests powerful article in the Wisconsin Womens Law Review, both published
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previously read Foucault,6 it was not until this class that I truly grasped the
nuanced ways that law was not a self-contained system, but rather
intersected with other social forces to regulate behavior and maintain
power and privilege.
One day in April 1992, Professor Williams walked into class, began to
lecture, and then stopped. She put aside the reading for the day and began
to talk about something that had recently happened at the Harvard Law
Review. As with law school casebooks, I really did not understand what a
law review was, other than one at American University had published ReReading Contracts. But the emotion in Professor Williamss voiceher
frustration, her anger, and then her anguish and tearshelped me through
the confusion.
Professor Williams said that Frug had been writing an article when she
died. The Harvard Law Review agreed to publish it in its unfinished state,
with the title A Postmodern Feminist Legal Manifesto (An Unfinished Draft).7
Apparently that decision was controversial. Soon after Frugs article was
published, some law review editors also published a parody of the article,
with the title He-Manifesto of Post-Mortem Legal Feminism and a byline
of Mary Doe, Rigor-Mortis Professor of Law.8 They distributed this
parody at a banquet that happened to take place on the one-year
anniversary of Frugs death.9
Professor Williams went on to detail all of the ways this parody did
violence to Frugs postmodern feminist analysis.10 The parody mocked
Frugs word choice, suggested that Frug was unfashionable and dour,
described her husband as a wimp while at the same time implying that her
article was published only because her husband was a Harvard Law School
professor, and shockingly stated that womens proper place was in the
home.11 As I took it all in, I realized that these words came from law
The parody was never distributed beyond the banquet, and the law review asked
attendees not to share it. I therefore have never seen an actual copy of the parody. My
understanding derives from Professor Williamss class and news articles describing the
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students not much older than I was. Misogyny and patriarchy were not
confined to the older generation of law professors, judges, and legislators.
Instead, Harvard Law School was producing a new generation of lawyers
who resisted gender equality and maybe actively thwarted it.
At that years Take Back the Night March, just days later, we
marched to the law school campus and surrounded the white house that
housed the Harvard Law Review. We lit candles and had a moment of
silence in honor of Frug and her work. We then yelled shame repeatedly
at the house. Faces appeared in the third floor windows, looking down on
us. I could not read their expressions. When I finally read A Postmodern
Feminist Legal Manifesto, I was shocked that the students in this white house
had so disrespected Frugs path-breaking work.
I graduated and struggled to find a post-college path. After two years
of working in jobs that did not seem to hold a future, I found myself going
back to Harvard for law school, in large part because of Frugs work. The
first year was jarring. Most days, voices like those in the parody seemed to
dominate.12 Luckily, Martha Minow was my civil procedure professor, but
I struggled to find other voices like those of Frug and Williams. I received
my worst 1L grade, indeed my worst law school grade, in contracts.
I almost dropped out, despite accumulating about $40,000 in debt to
cover my 1L year. A conversation with Professor Minow convinced me to
stay. She emphasized that I could forge my own curricular path during my
second and third years. To my surprise, she also strongly encouraged me to
do the law review competition.
That is how I ended up inside that white house in August 1995 as an
editor of the Harvard Law Review. I learned that the white house was called
Gannett House, that the editors alone selected all of the articles published
in the eight issues per year, and that we painstakingly edited all of those
articles. Of the forty or so new 2L editors selected through the competition,
contents of the parody. See, e.g. Andrea Sachs, Hiring Splits Harvard Law, 78 ABA J. 20 (1992);
Fox Butterfield, Parody Puts Harvard Law Faculty in Sexism Battle, N.Y. TIMES (Apr. 27, 1992),
available
at
http://www.nytimes.com/1992/04/27/us/parody-puts-harvard-law-faculty-insexism-battle.html?pagewanted=all; Ceci Connolly, Critics Say Parody of Murdered Professor
Illustrates Harvard Misogyny, AP NEWS ARCHIVE (Apr. 13, 1992, 6:14 PM),
http://www.apnewsarchive.com/1992/Critics-Say-Parody-of-Murdered-Professor-IllustratesHarvard-Misogyny/id-dbac93bdaae73a1807d0590f7f4af989; David Margolick, At the Bar; In
Attacking the Work of a Slain Professor, Harvards Elite Themselves Become a Target, N.Y. TIMES
(Apr. 17, 1992), available at http://www.nytimes.com/1992/04/17/news/bar-attacking-workslain-professor-harvard-s-elite-themselves-become-target.html; Steinman, supra note 8.
12 I realized that this problem was not unique to Harvard when I later read Lani Guiniers
analysis of law school classrooms, published during my 1L year. See Lani Guinier et al.,
Becoming Gentlemen: Womens Experiences at One Ivy League Law School, 143 U. PA. L. REV. 1,
3738, 5967 (1994).
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13 This gender disparity persisted long after I left the law review. Women comprised only
20% of the editors from the class of 2012. See Erin Fuchs, Harvard Law is Finally Dealing with its
Huge Sexism Problem, BUS. INSIDER (Dec. 10, 2013, 9:56 AM), http://www.businessinsider.com/
is-harvard-law-school-sexist-2013-12. In response, the law review finally adopted an
affirmative action plan for women, similar to those that had been proposed since the 1980s
(including when I was on the law review). The plan has begun to close the gender gap, with
women comprising 38% of the editors from the class of 2015. Id.
14 Frug, Manifesto, supra note 7, at 104748.
15 See, e.g. Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape
Law, 110 HARV. L. REV. 563 (1997); Cynthia Grant Bowman & Elizabeth Mertz, A Dangerous
Direction: Legal Intervention in Sexual Abuse Survivor Therapy, 109 HARV. L. REV. 549 (1996);
Nancy E. Dowd, A Feminist Analysis of Adoption, 107 HARV. L. REV. 913 (1994) (reviewing
ELIZABETH BARTHOLET, FAMILY BONDS: ADOPTION AND THE POLITICS OF PARENTING); Cheryl
Hanna, No Right to Choose: Mandated Participation in Domestic Violence Prosecutions, 109 HARV.
L. REV. 1849 (1996); Tracy E. Higgins, Democracy & Feminism, 110 HARV. L. REV. 1657 (1997);
Deborah L. Rhode, Feminism and the State, 107 HARV. L. REV. 1181 (1994); Note, Patriarchy is
Such a Drag: The Strategic Possibilities of a Postmodern Account of Gender, 108 HARV. L. REV. 1973
(1995).
16 Note, Cheering on Women & Girls in Sports: Using Title IX to Fight Gender Role Oppression,
110 HARV. L. REV. 1627 (1997).
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Harvard Feminist Law Review.17 I was annoyed, but mostly because the
possibility was preposterous. I had participated in the system, not
transformed it. As Audre Lourde had said not too long before, the
masters tools will never dismantle the masters house.18 Yet one more
time, I wondered what Frug would do.
II. Into the Classroom
During my fourth year of legal practice, I was lucky enough to begin
teaching a feminist legal theory seminar at night, as an adjunct professor at
Fordham Law School. Because it was a seminar, I put together my own
materials, replicating both my own path to feminist legal theory and the
path that I had learned in law school. Just like my undergraduate studies,
each of my law school classes that attempted to integrate feminism started
(and almost always stopped) with Catharine MacKinnon and Robin West. I
did the same on my syllabus.
The theories of MacKinnon and West provide a wonderful contrast to
the liberal feminism embodied in the equal protection cases that most
students encounter in law school.19 Both theorists thus tend to energize
students who choose to take feminist legal theory, inspiring them to go
beyond the thinking generally instilled during the first year of law school.
Indeed, reading MacKinnon or West often restores the hope for change that
motivated many of these students to embark upon law school in the first
place.
Yet the discussion that first year at Fordham did not really take off
until the fourth or fifth week, when we turned to Frugs A Postmodern
Feminist Legal Manifesto. The same was true the following year at Fordham,
as well as my first several years teaching at Washington University in St.
Louis. Many students are at first intimidated by Frugs three postmodern
principles,20 and the elusive meaning of postmodernism itself. I urge them
to just note the discomfort and keep going,21 in order to focus on Frugs
application of those principles to the female body. Almost always
something then clicks, as the class explores how legal rules terrorize,
sexualize, and maternalize the female body.22 The rest of the semester can
17 For another brief discussion of the role of the law review in this parody performance, see
Note, Making Docile Lawyers: An Essay on the Pacification of Law Students, 111 HARV. L. REV.
2027, 2039 n.54 (1998).
18 Audre Lourde, The Masters Tools Will Never Dismantle the Masters House, in SISTER
OUTSIDER 11013 (1984).
19
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23
Id. at 1046.
Id. at 105455.
25 Id. at 1055.
26 See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581,
61214 (1990). For a related yet different discussion of the intersection of race and gender, see
Kimberl 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
(1989), available at http://chicagounbound.uchicago.edu/uclf/vol1989/iss1/8.
27 Both Harris and Crenshaw are cited in A Postmodern Feminist Legal Manifesto, but Frug
did not deeply engage with them. See Frug, Manifesto, supra note 7, at 1051 n.5.
24
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28 RALPH RICHARD BANKS, IS MARRIAGE FOR WHITE PEOPLE?: HOW THE AFRICAN AMERICAN
MARRIAGE DECLINE AFFECTS EVERYONE (2011).
29 See e.g., Zillah Eisenstein, Constructing a Theory of Capitalist Patriarchy and Socialist
Feminism, 25 CRITICAL SOC. 196 (1999).
30 See, e.g., Dorothy E. Roberts, The Value of Black Mothers Work, 26 CONN. L. REV. 871,
87173 (1994).
31
See, e.g., Drucilla L. Cornell, The Solace of Resonance, 20 HYPATIA 215, 21719 (2005).
See, e.g., PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS, 1231 (1991).
33 Our consideration goes beyond my early exposure, see supra note 2, to include a greater
range of the work produced by both MacKinnon and West. See, e.g., CATHARINE A.
MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION
(1979); CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE (1989); ROBIN
WEST, CARING FOR JUSTICE (1997); Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1
(1988).
34 See Frug, Manifesto, supra note 7, at 1046.
35 See JUDITH BUTLER, UNDOING GENDER (2004); JUDITH BUTLER, GENDER TROUBLE:
FEMINISM AND THE SUBVERSION OF IDENTITY (1990).
32
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36 Katherine M. Franke, Theorizing Yes: An Essay on Feminism, Law, and Desire, 101 COLUM. L.
REV. 181 (2001).
37
38 JANET HALLEY, SPLIT DECISIONS: HOW AND WHY TO TAKE A BREAK FROM FEMINISM
39
(2006).
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Id. at 17788.
Id. at 17781.
43 See, e.g., DUNCAN KENNEDY, SEXY DRESSING ETC.: ESSAYS ON THE POWER AND POLITICS OF
CULTURAL IDENTITY (1995); Libby Adler, An Essay on the Production of Youth Prostitution, 55
ME. L. REV. 191 (2003); Anne Bloom, To Be Real: Sexual Identity Politics in Tort Litigation, 88 N.C.
L. REV. 357 (2010); Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV.
1259 (2000); Angela Harris, Transgender Rights, and Whipping Girl: A Transsexual Woman on
Sexism and the Scapegoating of Femininity, 36 WOMEN'S STUD. Q. 315 (2008) (book review); Tracy
E. Higgins, By Reason of their Sex: Feminist Theory, Postmodernism, and Justice, 80 CORNELL L.
REV. 1536 (1995); Jessica Knouse, Using Postmodern Feminist Legal Theory to Interrupt the
Reinscription of Sex Stereotypes Through the Institution of Marriage, 16 HASTINGS WOMENS L.J.
159 (2005).
42
44
See, e.g., ELIZABETH M. SCHNEIDER, BATTERED WOMEN AND FEMINIST LAWMAKING (2002);
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Id. at 127882.
Id. at 128285.
48 Id. at 1286.
49 Id. at 1290.
50 See Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
51 Nancy Polikoff came closest to answering my call, but she primarily advocated for
limiting the couples who would be subject to the partnership theory of marriage. See NANCY
D. POLIKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE: VALUING ALL FAMILIES UNDER THE
LAW (2008).
47
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Of course, it is both hubris and fantasy to believe that Frug would have
wanted to engage with my work in particular. It is not fantasy, however, to
suspect that Frugs ongoing work would have laid the foundation for new
approaches to feminist law reform or, at the very least, served as
inspiration for younger scholars like myself to propose those approaches.
Frugs manifesto already provides that inspiration, and I mourn the
additional insights and provocations that her future work would have
contained.
But I strive to practice what I (and Frug) teach, to note the discomfort
in this case the grief and frustrationand keep going.52 My
subsequent work has thus continued to focus on relationships, literally
building upon the postmodern insight that meaning and identity come into
being only through relationships.53 One strand of my scholarship examines
how the backdrop of legal marriage affects both intimate relationships that
do not hinge on sex,54 and sexual relationships that do not hinge on
intimacy.55 In both contexts, I continue to examine how relationships
contribute to constructions of gender, even as I have been advised that my
work would reach a broader audience if I did not constantly tie
relationship recognition and regulation to gender. Whenever I waver, I
return to Frugs words: [t]he question . . . is not whether sex differences
existthey door how to transcend themwe cantbut the character of
their treatment in law.56
Another strand of my scholarship examines how law contributes to
constructions of children and childhood.57 Some people assume this work
represents my own break from feminism. I have long believed, though,
that parent-child relationships contribute to constructions of gender as
much, if not more, than relationships between adults. I recently was able to
articulate that point more explicitly, exploring the role of children in
constructing both gender and feminism.58 I have thus been able to extend
Frugs insights in a multi-layered fashion, exploring how legal rules
52
54 Laura A. Rosenbury, Friends with Benefits?, 106 MICH. L. REV. 189 (2007); Laura A.
Rosenbury, Working Relationships, 35 WASH. U. J.L. & POLY 117 (2011); Laura A. Rosenbury,
Work Wives, 36 HARV. J. L. & GENDER 345 (2013).
55 Laura A. Rosenbury & Jennifer E. Rothman, Sex In and Out of Intimacy, 59 EMORY L.J. 809,
81314 (2010).
56
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59 Laura A. Rosenbury, Marital Status and Privilege, 16 J. GENDER RACE & JUST. 769, 77273
(2013).
60
Laura A. Rosenbury, Federal Visions of Private Family Support, 67 VAND. L. REV. 1835
(2014).
61 See KATHERINE FRANKE, WEDLOCKED: THE PERILS OF MARRIAGE EQUALITY (2015).
62 Laura A. Rosenbury, U. FLA. L., https://www.law.ufl.edu/faculty/laura-rosenbury (last
visited Apr. 9, 2016).
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school deans, and the legal academy as a whole. Other deans and
professors have offered powerful insights, but I suspect Frug would add
much to the conversation. Indeed, my imaginary conversations with Frug
now revolve around legal constructions of both gender and leadership.
Once again, Frugs murder, and the loss of her voice, are deeply felt. I
celebrate her work as I mourn what could have been. The bittersweet
nature of the channeling produces discomfort, but also hope and even joy. I
embrace Frugs words and keep moving on.