Now for A Woman's Point of View

By Anastasia Toufexis

What brass! When she had the nerve to try to become a practicing attorney, Myra Bradwell was rebuked by no less a body than the U.S. Supreme Court. "The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life," wrote Justice Joseph Bradley in an 1873 opinion. A century later, the unseemly became ordinary as women, riding a new wave of feminism, swept through the nation's law schools. In the U.S. today, more than 40% of law students and 20% of lawyers are women. As their numbers have swelled, so has their influence. "Our voices are definitely being heard," says Carrie Menkel-Meadow, a law professor at the University of California, Los Angeles.

Women lawyers today are boldly challenging the status quo. Last week more than a thousand people gathered in Oakland for the 20th National Conference on Women and the Law, where feminist scholars explored everything from marriage to murder. In school courses, articles and reading groups across the country, women are re-examining all aspects of the law, from teaching materials to fundamental principles. The aim: to uproot the sexism and inequality they feel are inherent in Western legal thought. "The law has been written with men in mind," explains Professor Mary Coombs of the University of Miami Law School. "Feminist jurisprudence puts women at the center and asks, 'To what extent is this doctrine or this area of law designed in a way that implicitly assumes people are men?' "

Feminist legal theory is highly controversial, but it is the most dynamic area of law today. Feminist scholars have pioneered the concept of sexual harassment in the workplace as a violation of civil rights, catalyzed passage of rape shield laws that forbid courtroom inquiries into victims' sexual experience, and expanded the principle of self-defense to cover battered women accused of killing abusive mates.

Feminist scholars are also questioning long-held assumptions in other areas. Catharine MacKinnon, who championed legal redress for sexual harassment on the job, is reframing the debate on pornography. MacKinnon, a visiting professor at Yale Law School, maintains that the central concern is not obscenity but sexual discrimination, because pornography hurts women and violates their civil rights. In a controversial stance that has pitted her against many feminists and civil libertarians, she favors granting injunctions against pornographers who "traffic in materials that can be proven to subordinate women."

Even one of the most sacrosanct areas of jurisprudence, contract law, is under attack. Feminists charge that the law tends to uphold agreements concerning the things men produce but ignores the contributions women make. Says Professor Mary Becker of the University of Chicago Law School: "Courts have traditionally refused to enforce bargains between spouses in which one partner agrees to pay the other for women's work -- child rearing, caretaking and other domestic responsibilities.' '

The theoretical ferment began in the early 1970s, when feminist lawyers joined the battle for women's equal rights. Advocates scored victories with the acceptance of so-called gender-neutral law, which, among other things, gave women an equal opportunity to become estate administrators and to receive government benefits. But this, observes Professor Martha Fineman of the University of Wisconsin, "wasn't really a challenge to the system itself. It was just 'Let us in too.' "

In the late 1970s some feminist theorists rejected this approach, known as "formal equality." Instead, they have advanced another concept, which they call "treatment as equals" and others sometimes refer to as "special treatment." They argued that there are certain problems, such as violence directed against women, that cannot be resolved by treating men and women exactly alike. These scholars insist that biological differences between men and women must be taken into account by the law. In effect, declares Christine Littleton, a law professor at the University of California, Los Angeles, there must be "equal acceptance" of differences. "Both groups of feminists are committed to the notion of equality," notes Littleton. "But we differ in strategies."

That division is most clearly visible in the issue of pregnancy. Georgetown University Law Professor Wendy Williams, the major proponent of equal treatment, maintains that since "pregnancy leads to a physical inability to work, it should be treated as any other temporary physical disability." Laws that give pregnant women specific privileges, she and others argue, imply unequal status and are likely to prove detrimental to women in the long run. They cite as an example the protective labor legislation of the turn of the century that for decades effectively kept women out of higher-paying jobs. Littleton, on the other hand, contends that without specific safeguards women who become parents are often at a disadvantage in the workplace.

Some feminist scholars believe that the law should take into account psychological as well as biological distinctions between the sexes. Women think differently, they contend, and have different notions of justice. These theorists draw heavily from the work of Carol Gilligan, a Harvard psychologist, who argues that women are less concerned than men about whether a particular action fits existing notions of right or wrong. Instead, she says, women tend to focus on the context of an event and how it affects the participants. Says Professor Barbara Babcock of Stanford University Law School: "We're concerned about preserving relationships through the law rather than promoting the antagonistic posture that law often fosters."

Reaction to feminist theories within the legal establishment has often been hostile. "Some academics say that feminist legal theory is too political and too emotional," observes Cass Sunstein, a professor of law at the University of Chicago and a rare male participant in the movement. "Every stereotypical adjective used to denigrate women is used to describe feminist scholarship."

Young scholars on the tenure track have found feminist theory a risky field of concentration. Despite her prominence, Catharine MacKinnon has been an academic nomad, journeying through seven law schools in the past decade. Last month she accepted her first offer of a tenured professorship, at the University of Michigan. Some feminists advise junior colleagues to nurture a reputation in safer areas of law before turning to their real interest. Increasing numbers of women, though, are ignoring this counsel. Declares Professor Martha Minow of Harvard Law School: "The lively response to feminist legal work confirms its power and its indelible message that those who have been excluded have something important to say."

With reporting by Cristina Garcia/Los Angeles and Andrea Sachs/New York