1. "In her analysis, Bender emphasizes the "different voice" approach of Carol Gilligan. Gilligan's work has tremendous importance for feminist legal theory and is cited frequently in feminist legal theorists' work. Bender first explains Gilligan's contribution to feminist scholarship with its suggestion that women's moral development reflects a focus on responsibility, contextuality, and caring, as opposed to men's, which relies more on rights and abstract justice. Then, Bender applies Gilligan's theory in her analysis of tort law - specifically the use of the standard of care of "the reasonable man" and the no-duty-to-rescue (a stranger) cases. She concludes by emphasizing that a feminist focus on caring, context, and interconnectedness are central to a new vision of the legal system." page 5 -6

      2. noted book: Carol Gilligan, In a Different Voice, Harvard University Press, 1982

Women's Subordination and the Role of Law by Nadine Taub and Elizabeth M. Schneider

      1. "Women have likewise been excluded from full participation in the economy. Under English common law, not only were they barred from certain professions (such as law), but, once married, they were reduced to legal nonentities unable to sell, sue, or contract without the approval of their husbands or other male relatives." page 10

      2. "But beyond its direct, instrumental impact, the insulation of women's world from the legal order also conveys an important ideological message to the rest of society. . . [T]he law's absence devalues women and their functions: women simply are not sufficiently important to merit legal regulation. . . By declining to punish a man for inflicting injuries on his wife, for example, the law implies she is his property and he is free to control her as he sees fit. Women's work is discredited when the law refuses to enforce the man's obligation to support his wife, since it implies she manes no contribution worthy of support. . . .These are important messages, for denying women's humanity and the value of her traditional work are key ideological components in maintaining women's subordinate status.

      . . . the law plays a powerful role, though certainly not an exclusive role in shaping and maintaining women's subordination." page 13

      3. Reed: a 1971 case where a woman sued to have equal opportunity to be an executor of an estate on the grounds that women were denied equal protection of the law

      4. "In Reed the Court for the first time held that women and men are similarly situated." page 17

Where We Stand: Observations on the Situation of Feminist Legal Thought Clare Dalton

      1. "I have left until last the question of how legal feminists may expect their work to be received, by the mainstream. In this as in other settings, it is already a disadvantage to be a woman. But to be a woman who teaches and writes as a woman, expressing women's concerns, is to be alomst certainly beyond the pale." page 37

      2. Footnote "5. D. Dinnerstein, The Mermaid and the Minotaur (Harper & Row, 1973). Dinnerstein, whose book predates Chodorow's, shares Chodorow's perception that the developmental task of separating out from mother, differently experienced by boy and girl children, helps to recreate the cultural differences we commonly see between men and women. More central to her account, however, is the idea that the culturally constructed "mother" role makes successful separation - individuation extremely difficult for children of both genders, leaving men and women allied in residual (unconscious) hatred and fear of mother and women more generally. She traces the consequences of these attitudes towards women for adult relationships between men and women, and between men and the planet they inhabit and govern." page 38

      3. Footnote "6. C. Gilligan, In a Different Voice (Harvard University Press, 1982). Gilligan suggests that there are two very different styles of thinking about moral questions, and the resolution of moral problems. One style, or ethic, stresses autonomy, rights, principles and exclusive solutions; the other stresses connection, contextual and consequentialist thinking and inclusive solutions, The first ethic Gilligan found more prevalent in men, the second in women. Gilligan herself sees the results of her empirical work as confirming the psychoanalytical theory of Nancy Chodorow." page 39

The Emergence of Feminist Jurisprudence: An Essay by Ann C. Scales

      1. "Feminist analysis begins with the principle that objective reality is a myth." page 42

      2. "In her popular book, In a Different Voice, developmental psychologist Carol Gilligan observed that little girls and little boys appear to grapple with moral problems differently. Boys tend to make moral decisions in a legalistic way: they presume that the autonomy of individuals is the paramount value, and then employ a rule-like mechanism to decide among the "rights" of those individuals. Gilligan refers to this as the "ethic of rights" or "ethic of justice." Girls, on the other hand, seem to proceed by the "ethic of care." they have as their goal the preservation of the relationships involved in a given situation. Their reasoning looks like equity: they expand the available universe of facts, rules, and relationships in order to find a unique solution to each unique problem." page 42 - 43

      3. "The demand for "gender neutrality" which served valiantly in the legal struggles of the seventies has inevitably become a critique of neutrality itself, which proceeds by an admittedly non-neutral method. Explanations of our method usually provoke the charge of nominalism, such is the staying power of the ideal of objectivity. Feminist method would appear to be an easy target for that weapon. Feminism does not claim to be objective, because objectivity is the basis fro inequality. Feminism is not abstract, because abstraction when institutionalized shields the status quo from critique. Feminism in result-oriented. It is vitally concerned with the oblivion fostered by lawyer's belief that process is what matters." page 45

      4. "The rights-based side of things, for all its grand abstraction, describes a pretty grim view of life on the planet. It treats individuals in society as isolated monads, as natural adversaries who must each stake out his own territory and protect it with the sword/shield mechanisms called "rights." This model of aggression of half of what is required for holocaust. False glorification of the "care-based" ethic supplies the other side of the suicidal equation, because a death march requires willing-looking victims. The incorporationist version of the care based ethic celebrates oblivion. Its Disney-movie appeal diverts attention from the issue of powerlessness, and, indeed, makes a political virtue of it. Masters glorify the contentment of their slaves, empires of their colonies. Here, hegemony strikes again. An incorporationist legal regime would, at best, merely institutionalize familiar female critique - steady but ineffectual." page 48

      5. "The issue is not freedom to be treated without regard to sex; the issue is freedom from systematic subordination because of sex." page 50

      6. "Injustice does not flow directly from recognizing differences; injustice results when those differences are transformed into social and economic deprivation." page 51

A Lawyer's Primer on Feminist Theory and Tort by Leslie Bender

      1. " "Patriarchy" is the feminist term for the ubiquitous phenomenon of male domination and hierarchy. It means that men have the bulk of the power and have used that power to subordinate women. . . . Their power is not only manifest in the political and economic world; it also governs families and sexual relationships. . . .[I]f your are male, whether or not you are a blatant user of that power, whether your are sexist or a feminist, you benefit from patriarchy just as whites benefit from systemic racism. But the momentary, ostensible benefits are greatly outweighed by the permanent and serious harm to all of us. . . . " page 59

      2. "We would be hard pressed today to find many people who would openly assert that women cannot be reasonable. Today we are taught to consider women reasonable when they act as men would under the same circumstances, and unreasonable when they act more as they themselves or as other women act. If it is true that somewhere, at some subconscious level, we believe men's behavior is more reasonable and objective than women's, then changing the phrase "reasonable man" to "reasonable person" does not really change the hypothetical character against whom we measure the actors in torts problems. . . .If we are wedded to the idea of an objective measure, would it not be better to measure the conduct of a tortfeasor by the care that would be taken by a "neighbor" or "social acquaintance" or "responsible person with conscious care and concern for another's safety?" " page 63

      3. "The legal standard of care may serve as the minimally acceptable standard of behavior, failing which one becomes liable. But the standard need not be set at the minimum - we do not need to follow Justice Holmes' advice and write laws for the "bad man." Have we gained anything from legally condoning behavior that causes enormous physical and mental distress and yet is economically efficient? The law can be a positive force in encouraging and improving our social relations, rather than reinforcing our divisions, disparities of power, and isolation.

      The recognition that we are all interdependent and connected and that we are by nature social beings who must interact with one another should lead us to judge conduct as tortious when it does not evidence responsible care or concern for another's safety, welfare, or health. Tort law should begin with a premise of responsibility rather than rights, or interconnectedness rather than separation, and a priority of safety rather than profit or efficiency. The masculine voice of rights, autonomy, and abstraction has led to a standard that protects efficiency and profit; the feminine voice can design a tort system that encourages behavior that is caring about others' safety and responsive to others' needs or hurts, and that attends to human contexts and consequences." page 65 - 66

Jurisprudence and Gender by Robin West

      1. "We can call this liberal legalist phenomenological narrative the "official story" of the subjectivity of separation. According to the official story, we value the freedom that our separateness entails, while we seek to minimize the threat that it poses. " page 77

      2. "Thus, there is a vast gap, according to critical theory, between the "official story" of liberal legalism - autonomy - and what the individual truly subjectively desires, which is to establish a true connection with the other. Similarly, there is a vast gap between the "official harm" of liberal legalism - annihilation by the other - and what the individual subjectively dreads, which is not annihilation by him, but isolation and alienation from him. . . ." page 77

      3. ""Thus, according to Gilligan. . . , women view themselves as fundamentally connected to, not separate from, the rest of life." page 79

      4. "The most significant aspect of our difference, though, is surely the moral difference. According to cultural feminism, women are more nurturing, caring, loving and responsible to others than are men. This capacity for nurturance and caring indicates the moral terms in which women, distinctively, construct social relations women view the morality of actions against a standard of responsibility to others rather than against a standard of rights and autonomy form others. As Gilligan outs it:

The moral imperative. . . [for] women is an injunction to care, a responsibility to discern and alleviate the "real and recognizable trouble" of this world. For men, the moral imperative appears rather as an injunction to respect the rights of others and thus to protect from interference the rights to life and self-fulfillment.

      To pursue my structural analogy to masculine legal theory, then, intimacy and the ethic of care constitute the entailed values of the existential state of connection with other, just as autonomy and freedom constitute the entailed values of the existential state of separation from others for men. Because women are fundamentally connected to other human life, women value and enjoy intimacy with others (just as because men are fundamentally separate from other human life men value and enjoy autonomy). . . ." page 80

      5. Writing of women as potential child-bearers: "Women are more emphatic to the lives of others because women are physically tied to the lives of others in a way which men are not." page 81

      6. "When Hobbes, Ackerman, Dworkin, Rawls, and the rest of the liberal tradition describe the natural human predicament as one of natural equality and mutual antagonism, and describe human beings as inevitably separate and mutually self-interested, thus definitionally excluding pregnant women and breast-feeding mothers from the species, they also are mistaken in a particular way and for a particular reason. Gavel has confused his male experience of separation and alienation with "human" experience, and liberals have confused their male experiences of natural equality, mutual suspicion, fear of annihilation, and pervasive, through-and-through selfishness with "human" experience, and they have done so because women have not made clear that our day-to-day, lived experience - of intimacy, bonding, separation, sexual invasion, nurturance, and intrusion - is incommensurable with men's." page 91 - 92

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