Paul L. Caron

Wednesday, November 2, 2022

Feminist Legal History And Legal Pedagogy

Paula A. Monopoli (Maryland), Feminist Legal History and Legal Pedagogy, 108 Va. L. Rev. Online 91 (2022):

Women are mere trace elements in the traditional law school curriculum. They exist only on the margins of the canonical cases. Built on masculine norms, traditional modes of legal pedagogy involve appellate cases that overwhelmingly involve men as judges and advocates. The resulting silence signals that women are not makers of law—especially constitutional law. Teaching students critical modes of analysis like feminist legal theory and critical race feminism matters. But unmoored from feminist legal history, such critical theory is incomplete and far less persuasive. This Essay focuses on feminist legal history as foundational if students are to understand the implications of feminist legal theory. It offers several examples to illustrate how centering women and correcting their erasure from our constitutional memory is essential to educating future judges and advocates.

Reflecting on my forty years in law—including thirty as a legal academic—yields the conclusion that the law has yet to recognize the significance of women in its development. I began my career in law just as feminist legal theory was taking root in law schools. It has yet to have the influence it should have in interpreting law, especially constitutional law. That is disappointing, but not surprising given the sticky nature of women’s social, legal, and economic subordination across societies and across millennia. I begin my seminar with Sophocles’ play, Antigone. Antigone defies her uncle’s order not to bury her brother, Polynices. Sophocles makes clear the unique anger that Creon, ruler of Thebes, displays when defied by a woman. The point for my students is that in bringing a feminist perspective to bear on law and women’s relationship to the state and to power, we are fighting thousands of years of deeply entrenched views about gender and its proper spheres. 

Each of us can only do so much. My contribution has been to join other legal scholars in bringing to light the history and significance of women in our constitutional development. If someone had told me on that first day of law school forty years ago that would be my legacy, I would have been surprised and pleased to know I would become a law professor
who helped produce judges and advocates well-equipped to recognize a substantive equality of citizenship in law.

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