“I’m Only Gonna Tell You This One More Time:” Lessons from Ann Scales

Jean Strout*

When Ann Scales passed away on June 24, 2012, the world lost a great feminist and a great lawyer.  One of her legacies is that the two need not be mutually exclusive.

 * * *

I never met Ann Scales.  I first heard about her passing from my mother, who was a year ahead of Ann at Wellesley College.  But when I learned that Ann had helped found this journal thirty-five years ago, I knew we had to honor her.

It is overwhelming to try to capture the life of a brilliant and well-loved advocate, professor and friend in just a few pages.  In the past few weeks, I have pored over nearly everything Ann has published and talked to many people who were close to her professionally and personally.  Ann was a great critic of objectivity and a strong believer in finding a place for every voice.  For that reason, I think she wouldn’t mind that her story is filtered through my experience of getting to know her this way.

Perhaps the best way to get to know Ann is through her writing.  Ann’s scholarship is accessible in a way few legal theorists can claim—or would even want to in an academic world obsessed with exclusivity.  She teasingly referred to the term she coined, “feminist jurisprudence,” as “high-faluting.”[1]  Each piece rings with Ann’s voice; she seems to be speaking directly to you, even responding to your questions.  Ann’s clear, clever prose is one way she subverted legal norms; she set out to both rewrite and translate the code of the legal ivory tower.

She had the same gift as a professor.  Ann taught at law schools across the country, most recently at the University of Denver’s Sturm College of Law, and previously at the University of New Mexico School of Law for eighteen years.  She explored exuberant, inclusive, interactive pedagogies foreign to the law school curriculum.[2]  “Ann invested—or rather, regaled us all with—her undivided presence,” said her former student and colleague at the University of New Mexico, Adriana Ramírez de Arellano.[3]  “In every word, every lecture, every course, Ann gave every inch of herself—some would say to a fault; I would say masterfully so.”[4]  Jane Caputi, who taught in UNM’s American Studies department and collaborated with Ann on several projects, described her as “a consummate teacher—knowledgeable, prepared, brilliant, witty, and capable of inspiring lifelong passion for justice.”[5]

For Ann, feminist theory and feminist practice were inextricable.  This is reflected in her scholarship, and in the way she lived her life.  Throughout her career as a professor and scholar, Ann also represented clients pro bono.  She was proud not to have taken a paying client since 1980.[6]  Ann was involved in several groundbreaking feminist cases: New Mexico Right to Choose NARAL v. Johnson was the first time a state Supreme Court upheld public spending on abortion.[7]  In R. v. Butler, Canada’s Supreme Court redefined obscenity based on a standard of the harm it inflicts, particularly on women.[8]  Ann worked on the University of Colorado football gang rape case,[9] and represented feminists who succeeded in bringing the first women’s marathon to the 1984 Olympics.[10]

The fact that Ann’s work is accessible does not mean that it is simple.  On the contrary, her scholarship engages with current political ideology, twentieth century legal movements, and millennia of Western philosophy.  Inspired by Catharine MacKinnon and Andrea Dworkin, Ann wrote about difficult, abstract legal and social concepts.  As they did, Ann brought them out of the ether and grounded them in real, human experience.

And not just female experience.  For Ann, feminist jurisprudence was much more than a vehicle for gender equality.  It was part of a larger mission to transform law and society to create room and respect for every kind of difference.  She set out to redesign “the allegedly anonymous picture of humanity,” which she described as “a picture males have painted of themselves.”[11]  Ann didn’t want to repaint the picture alone—she believed in multiplicity, collaboration, solidarity.  She was a champion for other writers and causes working towards social justice, even when she disagreed with them.  “Taking a stand and saying what you really see is a tough assignment,” she wrote.[12]  “When anyone committed to liberation does that, love her for it. . . If we can’t agree, or I’m being obstinate, go ahead and call me a bitch, then give me a hug and let’s make plans to collaborate in the future.”[13]

Ann didn’t believe that changing individual laws or winning individual cases alone is a real solution to subjugation.  She strove to disrupt typical thinking about law, and to disturb well-settled dichotomies.[14]  Her writings trounce the traditional reverence for law over policy, liberty over equality, and, of course, male over female.  “She was

the first person I ever  heard talk about thinking about the law in an entirely different way based on the fact that it was not at all neutral, not at all conscious of the inequalities it perpetrated,” said her longtime friend and HLS classmate Sheila Kuehl.[15]  Ann revealed many ways in which our legal system is neither objective nor inevitable.  Who is protected by an extremely high standard of causation in toxic tort cases?[16]  In legal education, why is family law considered a ‘soft’ discipline, while transactional law is ‘hard’?[17]  Why are attempts to remedy inequality, like affirmative action, opposed under a Constitution promising equality?[18]  How could the Supreme Court find that discrimination based on pregnancy is not sex discrimination under the equal protection clause?[19]  Rather than accepting law as inherently legitimate, Ann argued that it can be improved through constant questioning of both underlying theory and practical motivations:[20]  “Feminism brings law back to its purpose—to decide the moral crux of the matter in real human situations.”[21]

Ann knew that the law could change—could do better.  She was a member of the committee of students who put together “Celebration 25,” a party and conference held in 1978 “to commemorate the twenty-fifth anniversary of the graduation of the first women from Harvard Law School.”[22]  The commemorative booklet accompanying the celebration eventually became the Harvard Women’s Law Journal, and later the Harvard Journal of Law and Gender.[23]

Ruth Bader Ginsburg, who had recently won several gender discrimination cases before the Supreme Court based on the Equal Protection Clause, was chosen as the keynote speaker.[24]  “Scales, bless her heart, asked Professor Ginsburg whether the version of equality she had crafted in her arguments before the courts was really the best we could do,” wrote Kuehl, a fellow member of the “Celebration 25” committee.[25]  “Professor Ginsburg astonished us with her answer:  ‘That,’ she said, ‘is entirely up to you.’”[26]

Ann took up the challenge.  Much of her writing is dedicated to encouraging future lawyers to do the same.  For all of her critiques, she had tremendous faith in lawyers:  We are women and men drawn to the living of life, people with a native taste for survival, for diversity, and for freedom.”[27]  She believed the current legal system is designed to make lawyers “check their souls at the door,”[28] and urged us to fight back.

Ann Scales had many more facets than I can explore.  She was part Cherokee.  She spent her youth riding in rodeos.  She was a breast cancer survivor.  By all accounts, she was funny as hell; “irreverent” was the first word that came to mind for many of those I spoke to about her.  As someone who never had the pleasure of knowing her in life, the best way I can think of to honor Ann’s memory is to follow her advice—to fight back against those forces that, intentionally or not, try to maintain the longstanding systems of oppression.

Luckily for us, Ann left some instructions behind:  Have fun.  Raise hell. Question everything.  Celebrate difference.  Support one another.  Believe in change, and in the possibilities that feminism has to offer.

[1] Ann Scales, Law and Feminism: Together in Struggle, 51 U. Kan. L. Rev. 291, 292 (2003).

[2]  See Karl Johnson & Ann Scales, An Absolutely, Positively True Story: Seven Reasons Why We Sing, 16 N.M. L. Rev. 433 (1986) (discussing the use of song in a first year jurisprudence course).

[3] Email from Adriana Ramírez de Arellano to author (July 16, 2012 23:10 EST) (on file with author).

[4] Id.

[5] Email from Jane Caputi to author (July 16, 2012 8:59 EST) (on file with author).

[6] See Audrey Fannin, A Conversation with Ann Scales, Wake Forest Experiences (Oct. 12, 2010) http://wakeforestexperiences.blogspot.com/2010/10/conversation-with-ann-scales.html.

[7] New Mexico Right to Choose/NARAL v. Johnson, 986 P.2d 450 (N. M. 1999).

[8] R. v. Butler, [1992] 1. S.CR. 452 (Can.); See Ann Scales, Avoiding Constitutional Depression: Bad Attitudes and the Fate of Butler, 7 Can. J. Women & L. 349, 358 (1994).

[9] See Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007).  In 2001, female students were sexually assaulted by University of Colorado football players and high school recruits.  Two of the women sued the University under Title IX.  The district court granted summary judgment in favor of the university; however, this decision was reversed and remanded by the Tenth Circuit.  In 2007, the University of Colorado settled with the plaintiffs for almost three million dollars.  See Ann Scales, Student Gladiators and Sexual Assault: A New Analysis of Liability for Injuries Inflicted by College Athletes, 15 Mich. J. Gender & L. 205, 212–216 (2009).

[10] See Fannin, supra note 7.

[11] Ann Scales, The Emergence of Feminist Jurisprudence: An Essay, 95 Yale L.J. 1373, 1378 (1986).

[12] Ann Scales, Surviving Legal De-Education: An Outsider’s Guide, 15 Vt. L. Rev. 139, 161–62 (1990).

[13] Id.

[14] See, e.g., Ann Scales, Feminist Legal Method: Not So Scary, 2 UCLA Women’s L.J. 1, 19–20 (1992) (discussing the prevalence of binary logic and false dichotomies in legal thinking).

[15] Email from Sheila Kuehl to author (July 22, 2012 12:07 EST) (on file with author).

[16] See Ann Scales, Nobody Broke It, It Just Broke: Causation as an Instrument of Obfuscation and Oppression, in Fault Lines: Tort as Cultural Practice 269, 273 (David M. Engel, Jaruwan Engel, Michael McCann eds., 2009).

[17] See Scales, Surviving Legal De-Education, supra note 13, at 157.

[18] See Ann Scales, Legal Feminism: Activism, Lawyering and Legal Theory 56 (2006).

[19] See Ann Scales, Towards a Feminist Jurisprudence, 56 Ind. L.J. 375, 434 (1981).

[20] See, e.g., Ann Scales, Militarism, Male Dominance, and the Law, 12 Harv. Women’s L.J. 25, 57 (1989) (“The law, rather than asserting its authority for its own sake, rather than perceiving the enterprise as a contest between it and the citizen, needs to earn its authority in its day to day operations.”).

[21] Scales, The Emergence of Feminist Jurisprudence, supra note 12, at 1387.

[22] Sheila James Kuehl, For the Women’s Reach Should Exceed her Grasp, or How’s a Law Journal to be Born?, 20 Harv. Women’s L.J. 5, 5 (1997).

[23] Id. at 8.

[24] Id. at 9.

[25] Id. at 11.

[26] Id.

[27] Scales, Surviving Legal De-Education, supra note 13, at 264.

[28] Johnson & Scales, Seven Reasons Why We Sing, supra note 3, at 439.

3 Responses to ““I’m Only Gonna Tell You This One More Time:” Lessons from Ann Scales”

  1. Jane Caputi August 11, 2012 at 9:59 am #

    Thank you so much Jean for this wonderful piece that so vividly recalls Ann.

  2. Martha Trolin August 19, 2012 at 1:32 am #

    Yes Jean, just wonderful.

    I’m not a lawyer, but there aren’t many legislators in NM who don’t think I am. I’d come home from a day in the Roundhouse and call Annie with committee questions about one constitutional (or inane) question or another about gay, lesbian, or transgenders right to equality under the law, and by morning she’d have me and the organization, Equality New Mexico, looking brilliant!

  3. Marilyn Pittman August 20, 2012 at 3:04 pm #

    I was Ann’s wife 1980-82 when she began her law professor career at UNM. Thank you for this piece. She had more brilliance and courage than anyone I knew in our generation. She remains an inspiration.

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