Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence

 The man/woman difference and the dominance/submission dynamic define each other. This is
the social meaning of sex and the distinctively feminist account of gender inequality.1Sexual
objectification, the central process within this
 The perspective from the male standpoint3 enforces woman's definition, encircles her body,
circumlocutes her speech, and describes her life. The male perspective is systemic and
hegemonic.
 Each sex has its role, but their stakes and power are not equal.
 As feminism has a theory of power but lacks a theory of the state, so marxism has a theory of
value which (through the organization of work in production) becomes class analysis, but a
problematic theory of the state. Marx did not address the state much more explicitly than he did
women. Women were substratum, the state epiphenomenon.1
 The feminist posture toward the state has therefore been schizoid on issues central to women's
survival: rape, battery, pornography, prostitution, sexual harassment, sex discrimination,
abortion, the Equal Rights Amendment, to name a few. A
 Feminism has descriptions of the state's treatment of the gender difference,
 Feminists have reconceived rape as central to women's condition in two ways. Some see rape as
an act of violence, not sexuality,
 Susan Brownmiller examines rape in riots, wars, pogroms, and revolutions; rape by police,
parents, prison guards; and rape motivated by racismseldom rape in normal circumstances, in
everyday life, in ordinary relationships, by men as men.22 Women are raped by guns, age, white
supremacy, the state-only derivatively by the penis.

VALUES AND CONSEQUENCES: AS AN INTRODUCTION TO ECONOMIC ANALYSIS OF LAW

 “law and economics” movement, if discernible at all, would have been associated primarily with
problems of competition and monopoly,
 taxation (Henry Simons) and corporations (Henry Manne), even patents (Arnold Plant)
 Bentham’s largely forgotten utilitarian—essentially, economic—analysis of crime and
punishment.
 economics of contract law, civil and criminal procedure, property, consumer protection,
 Later, books and articles would extend the economic analysis of law into such fields as
employment, admiralty, intellectual property, family law, legislation, environmental law,
administrative law, conflict of laws, and judicial behavior; and this is only a partial list.
 today continues and remains the single most influential jurisprudential school in this country.
 It tries to explain and predict the behavior of participants in and persons regulated by the law. It
also tries to improve law by pointing out respects in which existing or proposed laws have
unintended or undesirable consequences, whether on economic efficiency, or the distribution of
income and wealth, or other values.
 These areas include antitrust, the regulation of public utilities and common carriers,
environmental regulation, the computation of damages in personal injury suits, the regulation of
 the securities markets, the federal sentencing guidelines, the division of property and the
calculation of alimony in divorce cases, and the law governing investment by pension funds and
other trustees, and to have been a significant factor in the deregulation movement and in free-
market ideology generally.
 Economic analysis of law is generally considered the most significant development in legal
thought in the United States since legal realism petered out a half century ago.
 Noneconomists often associate economics with money, capitalism, selfishness—with a
reductive, unrealistic conception of human motivation and behavior, a formidable mathematical
apparatus, and a penchant for cynical, pessimistic, and conservative conclusions.
 Rationality implies decision making, and people often have to make decisions under conditions
of profound uncertainty; fortunately, economists have devoted a good deal of attention to
decision under uncertainty. A simple but important example of a law-related decision under
uncertainty is the decision as to how much care to take to avoid an accident.
 By glancing at the Hand Formula you can see how an injurer could be deemed negligent even if
the probability of an accident were very low

The New Haven School: A Brief Introduction

 developed by Professors Myres S. McDougal and Harold D. Lasswel

 analytical methods of social science to the prescriptive purposes of the law
 law as a process of decision that is both authoritative and controlling
 organizing data about various social processes
 five intellectual tasks: goal formation, trend description, factor analysis, projection of future
decisions, and the invention of alternatives
 law’s academic and policy enterprise
 intl law and politics
 decision making process more consonant with human dignity
 law in books v. law in action
 formal and informal international orgs
 perspectives
 person trying to influence decision to orient himself or herself contextually in the relevant
processes
 no single one size fits all map for every problem
 law and choice
 continuous process of authoritative decision
 law shall serve human beings, anchors its policy-oriented search for a world public order
 Pluralist approach to international law
 Delegitimizing illiberal communities
 Solution oriented inquiry

Oct. 28 Notes
Plato

- Law is based on natural law, law is based on the consti itself

Contemporary Theories

Not a system of validation

Karl Marx

- Law is a system of oppression, legitimates oppression, used by the higher classes

- Law can be like religion, those who has less in life, has more with law
- Economic analysis, means of production working class, ruling class, alienates from the neighbor
and its people
- Labor law, agrarian law
- Poor man doesn’t experience law and liberation

Feminism

- Vast areas of law, labor, family, criminal, and even free speech, porn laws, rh laws, abortion law
- The women, patriarchy, law is used to oppress women, product of discrimination
- *idea of sexual harassment was mindblowing in 1992
- Not about consent, its about power = sexual harassment
- Sex is weaponized by the harasser
- Get institutions liable, to change
- There is an imbalance of power, use law to change
- Rape Law, question on who is in the more powerful position

Law and Economic

- Relations to be efficient, society to be productive, savings, elimination of transaction cost

- Provide incentives, or you use law to impose econ sactions
- Punish bad, reward good
- Moral judgments? It fails. Abortion, purely economic? Death penalty, drug
addiction(rehabilitate), efficient, but… lacks moral judgment
- Certain aspects of the problem

Political Science

- Law is the instrument of the powerful, but many sources of power, law, money, number
- Use law to push interest
- Example who is the mayor, who is the boss?

In relation to Griswold, the more applicable theory is the policy science. Policy science focuses law as a
process of decision that is both authoritative and controlling while the goal decision making process
more consonant with human dignity. The Connecticut Statute forbidding the use of contraceptives was
found to violate the right of marital privacy which the penumbra of specific guarantees of the Bill of
Rights of the US. The issue in this case is the power of the state to control the actions of a person in
penalizing a person who uses any drug or instrument for the preventing conception. In relation to the
decision making facet of the policy science, the case was decided on the reasoning that governmental
purpose to control or prevent activities constitutionally subject to state regulation may not be achieved
by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. The
court weighed the power of the state in relation to what it can impose to individuals.

The New Haven School: A Brief Introduction

 developed by Professors Myres S. McDougal and Harold D. Lasswel

 analytical methods of social science to the prescriptive purposes of the law
 law as a process of decision that is both authoritative and controlling
 organizing data about various social processes
 five intellectual tasks: goal formation, trend description, factor analysis, projection of future
decisions, and the invention of alternatives
 law’s academic and policy enterprise
 intl law and politics
 decision making process more consonant with human dignity
 law in books v. law in action
 formal and informal international orgs
 perspectives
 person trying to influence decision to orient himself or herself contextually in the relevant
processes
 no single one size fits all map for every problem
 law and choice
 continuous process of authoritative decision
 law shall serve human beings, anchors its policy-oriented search for a world public order
 Pluralist approach to international law
 Delegitimizing illiberal communities
 Solution oriented inquiry