New England Law Review: Volume 50, Number 3 - Spring 2016

MARY JOE FRUG MEMORIAL

SYMPOSIUM

PREFACE

Continually Re-Thinking: What Would

Mary Joe Frug Do? (A Preface to

Symposium Discussions)

MARTHA MINOW*

[50 NEW ENG. L. REV. 269 (2016)]

Only by continually re-thinking who we are and why we are making the choices we make can we free ourselves from the belief that our selves are constructed by our sexual identities.

~Mary Joe Frug¹

Twenty-five years ago, the world lost an inventive, elegant, passionate legal scholar and teacher, pioneer in feminism and law, and my dear and close friend.² Mary Joe Frug brought verve and zest to every interaction. She taught her students engagingly and memorably. She never rested with one level of analysis—in teaching, writing, and conversation—because more could also be seen and examined. She made each person with whom she interacted feel unique and valued. She helped to launch feminist legal scholarship, studied and worked against domestic violence, and devoted serious attention in law teaching to race, class, sexual orientation, and disability. She showed it is possible to be a passionate parent and paradigm-shifting professional.

She fearlessly pressed for analyses of gender embedded in legal discourse and practice despite rebuffs and dismissal by peers. For example she wrote her now-classic article, Rescuing Impossibility Doctrine: A Postmodern Feminist Analysis of Contract Law,³ after a prominent scholar and then-chair of the Contracts Section of the Association of American law Schools declined a proposal for a program joining contracts and feminism.⁴

A murderer brutally cut short her vibrant life a quarter century ago. The perpetrator was never found.

Posthumous publications of her teaching materials and her draft articles, symposia inspired by her work, and more than one generation of subsequent students and scholars followed.⁵ In the subsequent years, women finally received appointments to the United States Supreme Court, became deans of major law schools, and one became a serious contender for the presidency of the United States; social media emerged as did widely-experienced misogyny in digital expression.⁶ Bans on marriages between same-sex couples fell before constitutional challenge even as legal restrictions on abortion received judicial approval.⁷ International criminal courts ruled that rape is a war crime and a crime against humanity even as rape and sexual assault persist in daily life.⁸

In short, the questions and ideas of Mary Joe Frug remain crucial, as three thoughtful scholars in this volume examine in explorations of property, immigration, contract law, regulation, and in the realms of family, friends, and work. Laura Rosenbury explores the legal and social construction of human relationships and leadership with engaged and self-reflective discussion that Mary Joe would have celebrated. Laura Underkuffler explores places of belonging with insights afforded by Mary Joe Frug’s work, as well as critical race theory and theories of property; like Mary Joe, Laura focuses on people pushed to the margins in conventional legal theory and practice. Joe Singer questions treatments of and silence about paternalism in contract law. He also explores attitudes toward regulation in the United States and the inextricable role of law in the conditions for human freedom; like Mary Joe, he works to unearth assumptions underneath the law. Most striking to me is the way that each of these authors asks: What would Mary Joe Frug do? This question reflects both high regard for the wisdom, imagination, and acumen of this inventive legal scholar, as well as yearning for one more conversation with Mary Joe herself.

As the contributors to the Symposium suggest, Professor Frug introduced, elaborated, or demonstrated a range of strategies and tactics that remain relevant, valuable, and worthy of further attention. Mary Joe Frug warned about the danger of turning any form of critical analysis into a formula or mechanical application,⁹ and hence this list is offered with that serious caution, but also with hopes of further consideration of Frug’s pioneering work:

(1) Identify concretely the effect of ideologies and socially-constructed structures that seem inevitable but are culturally contingent;¹⁰

(2) Consider how a focus on gender difference is a clue to potential problems with the way language and analysis is proceeding rather than a revelation of truth or nature;¹¹

(3) Pay attention to style: Irony, playfulness, post-modern deconstruction fueled by vision, not for its own sake;¹²

(4) Generate comparisons between topics that have obvious gendered connections and topics that do not;¹³

(5) Resist any temptation to replace male values with female values rather than to challenging the confining structure that assigns gender to values;¹⁴

(6) Combat stereotypes of a group by paying attention to differences within the group;

(7) Devise and use detailed portraits of varied and diverse potential readers of legal texts;¹⁵

(8) Commit to unearthing and examining economic, social, biographical, and cultural contexts of legal materials;¹⁶

(9) Commit to rereading; and¹⁷

(10) Pay explicit attention to the position of an author or teacher in relation to readers and students.¹⁸

These suggestions point toward engagement with ideas and with practice, toward critique and constructive action, toward serious analysis and toward hopeful connections with other people. The articles offered here pursue many of these approaches and offer thoughtful reminders and extensions of Mary Joe Frug’s powerful ideas and dazzling example.

Footnotes

* Morgan and Helen Chu Dean and Professor of Law, Harvard Law School.

1 Mary Joe Frug, Re-reading Contracts: A Feminist Analysis of a Contracts Casebook, 34 AM. U. L. REV. 1065, 1140 ((1985) [hereinafter Frug, Re-reading Contracts].

2 For a remembrance written by her son, see Stephen Frug, Attempts: Mary Joe Frug, 1941-1991, STEPHEN FRUG BLOG (Apr. 4, 2011), http://stephenfrug.blogspot.com/2011/04/mary-joe-frug-1941-1991.html.

3 Mary Joe Frug, Rescuing Impossibility Doctrine: A Postmodern Feminist Analysis of Contract Law, 140 U. PA. L. REV. 1029 (1992) [hereinafter Frug, Feminist Analysis of Impossibility Doctrine].

4 Id. at 1029.

5 See LIBBY S. ADLER ET AL., MARY JOE FRUG’S WOMEN AND THE LAW (4th edition 2008); MARY JOE FRUG, POSTMODERN LEGAL FEMINISM (1992) [hereinafter FRUG, POSTMODERN LEGAL FEMINISM]; Mary Joe Frug, A Postmodern Feminist Legal Manifesto (An Unfinished Draft), 105 HARV. L. REV. 1045 (1992); Symposium, For Mary Joe Frug: A Symposium on Feminist Critical Legal Studies and Postmodernism (pts. 1 & 2), 26 NEW ENG. L. REV. 639, 26 NEW ENG. L. REV. 1173 (1992).

6 See Laura Barnett, The Conversation: Why Is There So Much Misogyny Online?, GUARDIAN (May 4, 2012, 3:58 PM), http://www.theguardian.com/commentisfree/2012/may/04/conversation-misogyny-online-abuse.

7 Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Gonzales v. Carhart, 550 U.S. 124 (2007).

8 Phillip Weiner, The Evolving Jurisprudence of the Crime of Rape in International Criminal Law, 54 B.C.L. REV. 1207, 1220-21 (2013); see Statistics, RAINN, https://www.rainn.org/statistics (last visited Apr. 19, 2016).

9 Frug, Re-reading Contracts, supra note 2, at 1138 (I want to caution readers not to freeze this analysis into a rigid, prescriptive, analytical formula for eradicating gender.); id. at 1139 ([L]iterally applying my analysis of the gender-related aspects . . . to every legal texts one reads would foster rather than challenge the constraints gender ideas have over our lives.). Thus:

The manifesto displays a commitment to deconstruct—to take apart apparent dichotomies and show how apparent polarities need or complement one another or exclude other important alternatives. . . . I think that your commitment to deconstruction is not for its own sake or to produce a mindlessly perpetual analytic machine that fractures concepts and ideas.

Martha Minow, Incomplete Correspondence: An Unsent Letter to Mary Joe Frug, 105 Harv. L. Rev. 1096, 1103 (1992).

10 See FRUG, POSTMODERN LEGAL FEMINISM, supra note 5, at 128-30 (examining maternalization, sexualization, and terrorization of the female body); Frug, Feminist Analysis of Impossibility Doctrine, supra note 3, at 1031 (Identifying the gendered character of the discourses can therefore be a feminist strategy for challenging the extensive and complicated network of social and cultural practices which legitimate the subordination of women.).

11 See Frug, Feminist Analysis of Impossibility Doctrine, supra note 3, at 1032; Frug, Re-reading Contracts, supra note 2, at 1066 ([G]ender often functions as a kind of emotional and rational shortcut.).

12 FRUG, POSTMODERN LEGAL FEMINISM, supra note 5, at 126 (Style is important in postmodern work.); Alison Diduck, Review: Postmodern Legal Feminism, 49 FEMINIST REV. 119, 119 (1995) (reviewing MARY JOE FRUG, POSTMODERN LEGAL FEMINISM (1992)) (Both this style and her ideas are intensely personal and engaging, which ultimately makes this collection an inspiring read.)

13 Frug, Feminist Analysis of Impossibility Doctrine, supra note 5, at 1042 (comparing impossibility doctrine and divorce and annulment law).

14 Id. at 1044.

15 Frug, Re-reading Contracts, supra note 2, at 1070-74 (introducing the feminist reader, the woman-centered reader, the reader with a chip on the shoulder, the innocent gentleman reader, the reader who is undressed for success, the individualist reader, the civil libertarian reader, and the undeserving (or insecure) male or female reader. The rest of the article considers how people situated in these multiple points of view might perceive materials in the contracts casebook).

16 Id. at 1111.

17 Id. at 1135-40.

18 Id. at 1036-1140 (explaining why as a professor in a position of relative power, Frug had reluctance to push some of her own scholarly ideas in the classroom).

INTRODUCTION

Mary Joe Frug

GERALD FRUG*

[50 NEW ENG. L. REV. 273 (2016)]

Mary Joe was murdered on April 4, 1991, a block and a half from our home in Cambridge. After such a horrifying event there is no such thing as closure. The murder left a permanent wound, one that our children and I had to learn to live with. That process takes a very long time. It is still ongoing. In the years immediately following Mary Joe’s death, helping the children through this process was my primary activity and concern. How could it not be?

Yet there was more to do than that. At the time of her death, Mary Joe was on her first leave of absence from the New England School of Law (as it was then called). She had been teaching at New England for ten years. She loved teaching her students. Truly loved it. Still, she needed time to write. Her devotion to teaching and mentoring students left her little time for that. As a result, her leave of absence—she had a fellowship at Radcliffe’s Bunting Institute for the Spring semester—was a wonderful opportunity for her. Now, at last, she could complete the many articles she had in draft and get them published.

Mary Joe did much of her writing at home. Our computer there would automatically date every document January 1, 1980, unless the writer specified another date. Mary Joe never bothered specifying another date. So, when she was killed, I undertook the job of going through her writings, trying to determine which draft was the most recent draft. This was not pure guess work. We regularly discussed both her writing and mine, so I was pretty much up to date. Still, it was not easy. But it was important. She had so many promising articles in draft. They needed to be published so that others could benefit from her work. And it was not just her articles that needed to be published. Over the course of the many years that she taught the subject, Mary Joe had put together teaching materials on Women and the Law. To be publishable—to be a casebook, in other words, not just mimeographed materials—these materials needed to be edited too.

I set myself the task of getting the articles and the casebook published. I came up with rules I would follow to do this job. I was determined not to rewrite anything. I wanted to publish her work as she wrote it, even in its unfinished state (one article ended with an incomplete sentence). Yes, I corrected typos and similar glitches. But no new material was added, and no parts of the work were cut. I still believe that this approach was correct. But it had its downside. Mary Joe herself would have rewritten the articles—and she would have re-thought the teaching materials—before publishing them. Should I try to polish her unfinished work in some way so that it would be closer to the form that I imagined she would have preferred? The answer to this question, I decided, was no.

The results of this work were six articles and a casebook:

(1) Sexual Equality and Sexual Difference in American Law;¹

(2) Difference, Community, and Sexual Politics: A Comment on Regina Austin’s Black Women, Sisterhood, and the Difference/Deviance Divide;²

(3) Rescuing Impossibility Doctrine: A Postmodern Feminist Analysis of Contract Law;³

(4) Law and Postmodernism: The Politics of a Marriage;⁴

(5) Progressive Feminist Scholarship: Can We Claim A Different Voice?;⁵

(6) A Postmodern Feminist Legal Manifesto (An Unfinished Draft);⁶ and

(7) WOMEN AND THE LAW.⁷

The culmination of this project was Mary Joe’s book, published by Routledge in 1992, entitled Postmodern Legal Feminism.⁸ This book collected and organized the articles just listed, and also included an earlier article Mary Joe had published in the 1980s: Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook.⁹ The book was by no means a complete compendium of her work. Most importantly, it left out a major article—Securing Job Equality for Women: Labor Market Hostility to Working Mothers¹⁰—an article that discussed a topic as vital now as it was then. The book, in short, required my editorial judgment—not just about what to include and exclude but about how to organize the articles into a book. There seemed no way out of this responsibility. The book was designed to be—has turned out to be—the most important way most people access her work.

No institution has contributed more to the task of keeping Mary Joe’s memory and the value of her work alive than New England Law. The New England Law Review published in full the memorial service held four days after her death in Harvard’s Memorial Church.¹¹ That publication contains many wonderful tributes, none more eloquent and moving than that delivered by our son Stephen, then 20 years old.¹² Given in a church packed to capacity so soon after her death, Stephen’s remarks left no one untouched. The New England Law Review also published two symposia on May Joe’s work—one in the volume with the memorial service and one later.¹³ In total, these two symposia included work by eighteen distinguished scholars. (The symposia also included the first two articles, listed above, by Mary Joe.) Ten years after her death, the New England Law Review published Regina Austin’s and Elizabeth Schneider’s reflections on Mary Joe’s Postmodern Feminist Legal Manifesto,¹⁴ along with work presented