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Emory Law News Center

Faculty and Scholarship

Universal vulnerability should inform public policy

Emory University School of Law |

When Martha Albertson Fineman founded the Feminism and Legal Theory Project (flt) in 1984, feminism’s most visible goal was equality—equal rights, equal pay, and equal access to workplace opportunities.

While there has been undeniable progress for women in many areas of law since then, some areas, such as reproductive rights and their relationship to pay equity, are still at issue.

Formal equality isn’t always the solution, says Fineman, now Robert W. Woodruff Professor of Law at Emory. Sometimes it is the problem.

Her work on law and the search for gender equity led Fineman early in her career to question the feminist embrace of equality. While formal equality (the kind the law delivers) is appropriate when the question is equal pay for equal work or one person, one vote, it cannot address all situations.

“For example, when you’re considering what is just and equitable at divorce, equal division of the burdens and benefits existing at that time will result in considerable inequities, because it does not take into account inequalities that existed across the life of the marriage, many of which will also affect future opportunities,” she says.

“Three kinds of inequalities should be taken into account when deciding property division, post-divorce support, and custody: inequalities in the labor market, inequalities in the bargaining power between spouses relating to earning power that make the primary wage earners’ interests paramount in family decisions, and inequalities in the burdens associated with being the primary caretaker of children both in and after marriage. In fact, formal equality actually delivers an injustice to the person who made the greater career and personal sacrifices during the marriage for the benefit of both spouses and the children.”

Fineman, who today is internationally recognized as an authority on family law and feminism, started flt while at the University of Wisconsin to provide “a safe place to develop feminist legal theory.” It was a brand new area in law and legal studies; not all law schools were receptive to feminist scholars. Since then, flt has fostered interdisciplinary examinations of the ways in which the interaction of law and culture shapes expectations, policies, and practices related to gender.

The project has traveled with her over the years from Wisconsin to Columbia University to Cornell. In 2004, Fineman brought flt to Emory, where it is thriving.

The project produced the first anthology of feminist legal theory, At the Boundaries of Law, in 1990. It has published an additional thirteen volumes since then and been instrumental in the development of hundreds of journal articles by scholars who have participated in flt workshops held around the world since 1985, examining such issues as sex, reproduction, the family, violence, labor, and employment.

FLT also hosts “Uncomfortable Conversations,” which focus on productive dialogues between advocates whose goals may create tensions. The first conversation was between advocates for women and advocates for children, and concerned issues surrounding divorce, child custody and support, and abuse and neglect.

In addition, flt hosts visiting scholars from around the world with current visitors in residence from India, China, Chile, and the United States. Many of Fineman’s scholarly pieces on feminist legal theory are now being translated into Chinese and Spanish. Earlier work has appeared in Korean and Japanese.

An outgrowth of Fineman’s concern with gender issues relating to age, race, class, ability, and sexuality is the Vulnerability and the Human Condition Initiative (vhc), which she founded in 2008. This initiative brings together diverse perspectives and disciplines to advance a social justice framework rooted in the universality of human vulnerability and the need for a responsive state.

“Vulnerability should be recognized as the primal human condition. As embodied beings we are constantly susceptible to harm, whether caused by disease and physical decline or natural or manufactured disasters,” Fineman explains. She notes that vulnerability may be most evident during times of dependency, when we are infants, ill, aged, or disabled, but argues that it is continuously present throughout life.

Recognizing vulnerability has political and policy implications. 

“If we look at American society, we see a long and growing list of material and social inequalities; we have no guarantee of basic social goods such as food, housing, and health care, and we have a network of dominant economic and political systems that not only tolerate, but justify grossly unequal distributions of wealth, power, and opportunity,” Fineman wrote in a 2008 article for the Yale Journal of Law and Feminism.

With principles of autonomy, self-sufficiency, and the restrained state still firmly entrenched in American discourse, Fineman reflects that there is still a lot to do.

For example, the legal research database company HeinOnline is creating an online repository of the project’s work and papers. The vhc is also garnering increasing international attention, with scholars coming from across the world to learn more about this emerging paradigm.

Fineman takes the long view on that progress, hopeful that she is “part of an historic process that will result in progressive change.”

This story appears in the Fall 2014 issue of Emory Law Insights and can be read online, with an accompanying excerpt from Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate 2013)(with Anna Grear).