ABSTRACT
This chapter analyzes feminism in legal theory in relation to the rise of ‘law and economics’ during the late twentieth century. Building on other accounts, I trace how non-academic organizations invested heavily in developing and institutionalizing law and economics as a seemingly neutral methodology that could build academic credibility for anti-egalitarian ideology and legal change. Further, the chapter explains how the substance of this law and economics fundamentally undermines feminism in law by constructing the economy as a sphere best insulated from contested morality and politics. The central law and economics division between seemingly objective economic maximizing and subjective social distribution puts feminist law in a double bind, naturalizing a gendered baseline that generally makes feminist reforms appear costly, unfair, or ineffective. This core conceptual move closes off feminist legal efforts to question and redefine what counts as productive, legitimate economic gain.
Finally, I explore how this core division of law and economics constructs an idea of liberty that makes feminist efforts to remedy gender-based harms appear illegitimate and oppressive. Law and economics identifies freedom with an economy imagined to remove individual self-interested choices from public support or accountability. That ideal of freedom closes off analysis of how law’s gendered assumptions and unequal protections pervasively limit individual agency and meaningful choice in the economy and in society. Law and economics cuts against legal feminism not because gender justice is a non-economic goal, but because law and economics promotes a misleading economic ideology steeped in gender and tilted toward those most willing and able to disregard and discount others’ well-being.
McCluskey, Martha T, Law and Economics Against Feminism (March 29, 2021). Accepted for Oxford Handbook on Feminism and Law in the US, Deborah L Brake, Martha Chamallas, and Verna L Williams, eds, University at Buffalo School of Law Legal Studies Research Paper No 2020-009.
First posted 2021-04-03 12:45:56
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