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Feminist Legal History

Feminist Legal History: Essays on Women and Law

Tracy A. Thomas
Tracey Jean Boisseau
Copyright Date: 2011
Published by: NYU Press
Pages: 285
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  • Book Info
    Feminist Legal History
    Book Description:

    Attuned to the social contexts within which laws are created, feminist lawyers, historians, and activists have long recognized the discontinuities and contradictions that lie at the heart of efforts to transform the law in ways that fully serve women's interests. At its core, the nascent field of feminist legal history is driven by a commitment to uncover women's legal agency and how women, both historically and currently, use law to obtain individual and societal empowerment.

    Feminist Legal Historyrepresents feminist legal historians' efforts to define their field, by showcasing historical research and analysis that demonstrates how women were denied legal rights, how women used the law proactively to gain rights, and how, empowered by law, women worked to alter the law to try to change gendered realities. Encompassing two centuries of American history, thirteen original essays expose the many ways in which legal decisions have hinged upon ideas about women or gender as well as the ways women themselves have intervened in the law, from Elizabeth Cady Stanton's notion of a legal class of gender to the deeply embedded inequities involved in Ledbetter v. Goodyear, a 2007 Supreme Court pay discrimination case.

    Contributors: Carrie N. Baker, Felice Batlan, Tracey Jean Boisseau, Eileen Boris, Richard H. Chused, Lynda Dodd, Jill Hasday, Gwen Hoerr Jordan, Maya Manian, Melissa Murray, Mae C. Quinn, Margo Schlanger, Reva Siegel, Tracy A. Thomas, and Leti Volpp

    eISBN: 978-0-8147-8426-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword
    (pp. vii-viii)

    The impressive body of work collected inFeminist Legal Historydemonstrates that a new field is emerging in history and in law that speaks, at one and the same time, to audiences in the academy and beyond.

    This is a book that alters our vision of American life and law. It revisits familiar terrain, and recovers long lost interactions between men and women at the root of this nation’s defining commitments and institutions. We come better to understand how gender relations have defined spheres we have long recognized as gendered, such as suffrage, marriage, the military, sexual harassment, and reproductive...

  4. Preface
    (pp. ix-xii)
  5. Introduction: Law, History, and Feminism
    (pp. 1-30)

    Feminist Legal Historyoffers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. The essays in this book look at women’s status in society over time through the lens of the law. The conventional story portrays law as a barrier or constraint upon women’s rights. While law has and continues to operate as a restraint upon women’s full participation in society, law has also worked as a facilitating structure. The overall picture gleaned from the snapshots in time offered in this book shows the actualizing power of the law for women....


    • 1 Courts and Temperance “Ladies”
      (pp. 33-51)

      In 1873 and 1874 parts of southern Ohio were gripped by a remarkable string of marches, religious gatherings, and sit-ins by conservative, Christian, white women intent on shutting down the distribution of alcohol in their communities. The immediate catalyst for the movement was a speech given by Dr. Diocletian Lewis, a believer in God, gymnastics, and temperance. He frequently gave orations urging women to pray at bars for the deliverance of intemperate souls, but he usually was politely received and ignored. On a few occasions his plan to use prayer to obstruct liquor traffic led to small and short-lived demonstrations....

    • 2 Women behind the Wheel Gender and Transportation Law, 1860–1930
      (pp. 52-67)

      Gender difference is only infrequently mentioned in recent negligence cases. To contemporary (mostly non-essentialist) eyes, gender difference seems to appear only mildly relevant to tort law’s area of concern: care and harm to others and self. But in the early days of modern tort law, when gender differences loomed larger in the consciousness of American jurists, and unabashedly so, judicial opinions more frequently grappled with how negligence doctrine ought to take account of female difference. This chapter explores opinions published between approximately 1860 and 1930 that illuminate this issue in cases involving women drivers and passengers of cars and wagons.¹...

    • 3 Expatriation by Marriage The Case of Asian American Women
      (pp. 68-83)

      In the United States the ritual of marriage is generally thought to reflect as well as enact citizenship. Indeed, it is precisely this positive relationship between marriage and citizenship that explains why marriage continues to be heterosexually policed. But marriage has not always served as a citizenship enacting institution. Marriage has also functioned to divest women from their citizenship. Feminist historians have written important work exploring the little-known fact that American women lost their citizenship for nothing more than marriage.¹ This chapter focuses that discussion upon Chinese and Chinese American women, to show how race unevenly shaped the gendered laws...

    • 4 Made with Men in Mind The GI Bill and Its Reinforcement of Gendered Work after World War II
      (pp. 84-99)

      This chapter critically examines the GI Bill of 1944—perhaps the most well-known veterans’ benefits program in American history. The GI Bill of Rights, signed into law by President Franklin D. Roosevelt, afforded enormous employment, educational, and financial benefits to veterans following World War II.¹ Predicated solely on military service, GI Bill benefits were seen as the logical entitlement of those who had served their country during World War II. Feminist scholarship has identified the gendered nature of veterans’ benefits and preferences that privilege military service and, in so doing, disadvantage women, who as a group are less likely to...

    • 5 Fighting Women The Military, Sex, and Extrajudicial Constitutional Change
      (pp. 100-117)

      Americans often celebrate military service as a badge of honor and an emblem of full citizenship. Though potentially dangerous and difficult, even brief service in the armed forces offers valuable training, employment benefits, and reputational advantages, opening doors to civilian careers. Yet for generations Congress, the executive branch, the military, and the courts denied women equal access to the benefits and burdens of military service. Laws requiring men to register for possible conscription excluded women. Men could serve in combat, but women could not. Men could rise through the ranks, but the military relegated women to lower-status positions. Men could...

    • 6 Irrational Women Informed Consent and Abortion Regret
      (pp. 118-136)

      This chapter explores the law’s failure in the twenty-first century to treat pregnant women as capable of making their own decisions concerning whether to have an abortion. The Supreme Court’s 2007 decision inGonzales v. Carhart, which upheld a federal ban on a type of second-trimester abortion that many physicians believe is safest for their patients, brought the question of women’s capacity for abortion decision making to the forefront of public legal consciousness. InCarhart, the Court abandoned its previous deference and respect for a woman’s right to be her own decision maker with regard to abortion and instead determined...


    • 7 Elizabeth Cady Stanton and the Notion of a Legal Class of Gender
      (pp. 139-155)

      In the mid-nineteenth century Elizabeth Cady Stanton used narratives of women and their involvement with the law of domestic relations to collectivize women. This recognition of a gender class was the first step toward women’s transformation of the law. Stanton’s stories of working-class women, immigrants, Mormon polygamist wives, and privileged white women revealed common realities among women in an effort to form a collective conscious. The parable-like stories were designed to inspire a collective consciousness among women, one capable of arousing them to social and political action. For to Stanton’s consternation, women showed a lack of appreciation of their own...

    • 8 “Them Law Wimmin” The Protective Agency for Women and Children and the Gendered Origins of Legal Aid
      (pp. 156-172)

      In 1888 a woman seeking protection for her stepdaughter arrived at the Protective Agency for Women and Children (PAWC), a new organization in Chicago offering free legal services to women and children. Several nights earlier she witnessed her husband sexually assault his daughter. The stepmother had him arrested, but the justice of the peace released him. Once freed, the father tried to abduct his daughter. The PAWC’s agent, Charlotte Holt, persuaded the justice to re-arrest the father, but the father secured his release by bribing the constable. Holt then persuaded the State Attorney to have the father arrested once more....

    • 9 Legal Aid, Women Lay Lawyers, and the Rewriting of History, 1863-1930
      (pp. 173-188)

      This chapter demonstrates that the origins of free legal aid for the poor was deeply gendered and grew out of women’s work. In fact, the provision of legal aid in New York City, Chicago, and Philadelphia first involved the creation of legal aid organizations for poor women, and this aid was provided primarily by other women functioning as lay lawyers.¹ By the late 1890s, as women in small numbers began graduating from law schools, some joined the newly developing legal aid societies as full-fledged attorneys. Likewise, women as clients and their claims against employers and husbands saturate the records of...

    • 10 Sisterhood of Struggle Leadership and Strategy in the Campaign for the Nineteenth Amendment
      (pp. 189-205)

      Alice Paul’s campaign for the Nineteenth Amendment is one of the paradigmatic examples of transformative constitutional reform. From 1913 until the amendment granting women the right to vote was ratified in 1920, Paul rejected the more conciliatory style of lobbying and state-level campaigning practiced by the leaders of the National American Woman Suffrage Association (NAWSA) and instead chose more contentious methods to promote the suffrage cause, including spectacular public demonstrations, hard-fought political campaigns, and courageous wartime picketing.¹ To support the campaign for a new federal amendment, Paul established the Congressional Union in 1913 and the National Woman’s Party in 1916,...

    • 11 “Feminizing” Courts Lay Volunteers and the Integration of Social Work in Progressive Reform
      (pp. 206-222)
      MAE C. QUINN

      Anna Moscowitz Kross was one of New York’s first women judges and the country’s first judicial innovators. On the bench from 1934 to 1953 in New York City’s Magistrates’ Court, a trial-level police court that handled criminal matters, Kross engaged in a variety of experiments to transform criminal law and practice. She sought to use the coercive power of the justice system to engage in social engineering. From prostitution to domestic violence to unruliness in youths, Kross attempted to resolve the root causes of social problems from the bench. Her goal was not to punish but to improve the lives...

    • 12 Sexual Harassment Law for Women, by Women
      (pp. 223-239)

      In March 1975 a group of feminist activists in Ithaca, New York, coined the term “sexual harassment” to name something they had all experienced but rarely discussed—unwanted sexual demands, comments, looks, or sexual touching in the workplace. The experience they wanted to uncover was one that women in North America had faced since colonial times. Seventeenth-century indentured servants, eighteenth-century black slaves, nineteenth-century factory workers, and twentieth-century office workers all shared the experience of having fended off the sexual demands of those wielding economic power over their lives—masters, overseers, foremen, and supervisors.

      Historically women responded to workplace sexual coercion...

    • 13 Ledbetter’s Continuum Race, Gender, and Pay Discrimination
      (pp. 240-256)

      She became the living embodiment of the slogan “equal pay for equal work,” campaigning across America during the 2009 presidential election to ensure that other women never would experience wage discrimination without legal remedy. For nearly twenty years Lilly Ledbetter received less pay than men who held the same floor manager job for the Gadsden, Alabama, branch of Goodyear Tire and Rubber Company. Wages depended on performance ratings, and she had long suspected prejudicial evaluations because of her sex, but she only discovered the gap between her monthly earnings and those of the lowest compensated man when she saw the...

  8. Selected Bibliography
    (pp. 257-260)
  9. Contributors
    (pp. 261-264)
  10. Index
    (pp. 265-274)