The Common Law as a Terrain of Feminist Struggle

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For the better part of two decades, feminists have been questioning the usefulness of the law in advancing gender justice.Early feminist struggles, particularly those of what is commonly understood as second-wave feminism, focused on achieving formal equality and giving teeth to constitutional guarantees of equal protection. The big cases are easily recognizable landmark changes to constitutional law. Common law has received comparatively less attention as a source of and, indeed, as a locus of gender justice. Professor Anita Bernstein’s book The Common Law Inside the Female Body makes a powerful argument that we need to consider. The common law is often derogatorily dismissed as “judge-made law” in the United States, possibly because we have come to believe (erroneously) that the province of lawmaking is that of the legislature alone and that judges ought to stick to interpreting and applying that which is legislated or recognized clearly as common law precedent. This is likely a peculiarity of the American legal tradition with its preoccupation with separation of powers and constitutional law. Yet the common law has never been simply about following precedent. Lawyers trained in the United States have to make their peace with the fact that this judicial lawmaking tradition is foundational to our legal system whether we believe unelected (and elected) judges are capable of doing so well or not.