Tag Archives: History


Congressional Power to Effect Sex Equality

Congressional Power to Effect Sex Equality

Patricia A. Seith

This article will be published in our forthcoming Winter 2013 issue.

From its passage by Congress in 1972 to its ratification failure in 1982, the Equal Rights Amendment (“ERA”) pivotally shaped sex equality discourse. While historians and legal scholars have examined and analyzed its demise, its failure has been deemed inconsequential for constitutional doctrine — conventional wisdom submits that a “de facto ERA” was achieved through judicial action. This Article argues that this dominant narrative has obscured the other half of the equation — the role of Congress in implementing the “de facto ERA.” Through original archival and legislative research, this Article offers a new account of congressional action aimed at entrenching the substantive guarantees of the sex equality principle. This Articles introduces the Economic Equity Act to the sex equality narrative.

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Book Review: Battling Miss Bolsheviki

Book Review

Misty Wright*

Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States. By Kirsten Marie Delegard. Philadelphia, PA. University of Pennsylvania Press. 217 pages.

Click here to access a PDF version of the book review.



Miss Bolsheviki has come to town,
With a Russian cap and a German gown,
In women’s clubs she’s sure to be found,
For she’s come to disarm America

…The male of the species has a different plan
He uses the bomb and the fire brand,
And incites class hatred wherever he can
While she’s busy disarming America.

His special stunt is arousing the mob,
To expropriate and hate and kill and rob,
While she’s working on her political job

In 1920, female enfranchisement marked the dawning of a new era of female power in American democracy. But rather than catapulting women’s reform efforts forward, the 1920s ushered in an era of female conservatism, whose presence and players have largely been overlooked or underplayed. In Battling Miss Bolsheviki, Kirsten Marie Delegard explains how women antiradicals recast female reformers as Bolshevik sympathizers, halting female reform “during their critical transition to full political citizenship.”[2] In fact, Delegard argues, the 1920s’ reshaping of women’s politics was just as influenced by the Russian Revolution as the Nineteenth Amendment.[3]


Prior to the Nineteenth Amendment, “maternalist” members of women’s clubs lobbied Congress to advance a reform agenda, viewing their work as a “selfless mission[] necessary for the protection of their homes, families, and children.”[4] Suffrage did not lead to the kind of social welfare reform they had imagined.[5] At first, historians supposed that women simply lost steam.[6] Others cited male opposition as the culprit.[7] But Delegard suggests that the real reason for stymied reform was that the women’s bloc divided after suffrage.[8] By the end of the 1920s, women antiradicals had linked their reform-minded sisters to dangerous revolution, delegitimizing the reform movement and its leaders.[9]

According to Delegard, assumptions of women’s history have posed a problem to our understanding of what happened to the women’s bloc in the 1920s.[10] There is an “unspoken belief that women possess an inherent affinity for demilitarization, an expanded social safety net, and greater social justice.”[11] Because of this bias, history has been written as though women who opposed radical and reform agendas—female antiradicals—did not exist.[12] But this belief is simply unfounded; female antiradicals were not merely backlash phenomena, outliers, or pawns of the War Department or other male antiradical efforts.[13] Delegard demonstrates that the female antiradical movement was a legitimate, widely supported cause of its own.

She also demonstrates that the female antiradical movement had far-reaching effects. Not only did it stifle the path of American reform[14] and “challenge[] assumptions about female political engagement,”[15] but it also was integral in the rise of the American conservative right.[16] It divided women and women’s organizations that had once been “united under the flag of social improvement.”[17] It set the stage for women’s anticommunist involvement.[18] And decades later, at the time of the Equal Rights Amendment, it was “instrumental in turning the GOP to the right.”[19] Delegard argues that the conservative political identity constructed by 1920s antiradicals later swept Reagan into the Presidency,[20] and women were the “backbone” of conservative mobilization in the 20th century.[21] Most interestingly, “[t]he power struggles . . . illustrate both the political potential and the pitfalls of using female solidarity as a foundation for organizing, a paradox that will continue to bedevil politically active women well into the twenty-first century.”[22]


Delegard begins with the philosophical inception of antiradicalism. In 1919, the Senate Overman Committee held hearings to investigate the 1917 Bolshevik revolution.[23] Testimony from an American prisoner in Russia about women becoming the state’s property, available to any man who wanted them, resulted in myths and rhetoric centered on the danger of perverting the traditional family.[24] Some of these dangers included divorce laws that “encouraged men to discard their wives” and “the ‘nationalization’ of women and children.”[25] “These stories helped recast domestic repression as necessary to shield women and children from the effects of radicalism; they gave moral legitimacy to efforts to crush quests for political, economic, and racial justice.”[26] Delegard contends that narratives about women—particularly about sexual victimization of women—provided the most powerful arguments that Bolshevism endangered America.[27] “Narratives about sexual terror transformed the fight against radicalism into a battle to protect American womanhood.”[28] From the Overman hearings emerged fear, and from that fear emerged female antiradicals.

The similarities this book reveals between female maternalist reformers and female antiradicals are striking. Both, first and foremost, desired to protect women (and children).[29] But they disagreed on how to go about doing so. Antiradicals turned to the family and patriarchy.[30] They could not imagine a society in which woman’s childcare duties and structural inequities would not limit her ability to be economically independent.[31] In comparison, female reformers’ dreams were a bit bigger, as they saw alternate, government-assisted protection as a real possibility that could enable economic independence. Further, both said their motivations were selfless—for the benefit of society and their children—but their true aim was self-preservation.[32] And both reformers and antiradicals were scared of radicalism.[33]

Not only did female reformers and antiradicals have similar aims, but they also had, on the whole, similar backgrounds—a similar activist history, middle class status, and white racial backgrounds “kept these women operating in the same political world, even as ideology was pulling them apart.”[34] They also had similar education levels and assumptions about gender, race, and the threat of immigration.[35] Both used the same institutional structure and sometimes, the very same institutions, for their activism.[36] Many organizations housed both reform and antiradical individuals, and many individuals belonged to both reform and antiradical organizations over the 1920s.[37]

Throughout her book, Delegard dances around the role of sex-stereotyping and sexism in women’s political activism. For example, Americans thought all women were innate maternalists.[38] In the early years following the ratification of the Nineteenth Amendment, women took up the peace movement and self-stereotyped themselves as natural peacemakers.[39] But antiradicals saw women as uniquely vulnerable to radical ideology on account of their sex’s tender nature.[40] Others saw them as un-American, foolishly creating a nation defenseless to radical takeover.[41] The War Department went on the offensive, labeling women’s organizations as radical.[42] Female antiradicals found that sexism shut them out of the male antiradicals’ conversation, but Delegard contends that the resulting separatism preserved the vitality of their campaign.[43]

To be clear, there was no evidence of a Russian effort to recruit American women.[44] Despite this, a diagram of “female treachery that linked all middle-class women activists [and sixteen organizations] to revolutionary radicalism” emerged in 1923.[45] This Spider Web Chart was accompanied by the poem featured at the beginning of this review.[46] It was circulated by the War Department but authored by a woman—a fact overlooked by many, including female reformers.[47]

“It takes women to fight women,” stated Claire Oliphant, the national president of the American Legion Auxiliary, in 1925.[48] Whether or not this was true, women certainly did begin to fight women in the 1920s.  Female antiradicals took up counter-subversion,[49] staged highly public confrontations with peace activists,[50] blocked conventions,[51] redefined the agendas of women’s organizations (particularly by polarizing centrist ones), created new antiradical women’s institutions,[52] and campaigned against legislation. Delegard discusses each of these strategies in extraordinary depth. For example, antiradicals’ campaign against legislation included opposition to the Child Labor Amendment, to the reauthorization of the Maternity Act,[53] and to the Equal Rights Amendment, all on grounds that they would supposedly weaken the patriarchal family or nationalize women and children, either of which would make the country vulnerable to radical takeover.[54] Antiradicals were successful at stopping the “revolution by legislation”[55] because they knew how to be effective information disseminators and fear mongerers at the local level. Both the Child Labor Amendment and the (much later) Equal Rights Amendment passed through Congress, but antiradicals prevented its ratification by the states.[56]

Antiradicals’ most effective tactic, and the tactic that receives the most page space in the book, was the systematic application of guilt-by-association to reform organizations and individuals.[57] They sought to destroy the political reputations of reform organizations and the reform and moderate women who ran them.[58] In 1927, the Daughters of the American Revolution (DAR) released six blacklists,[59] demonstrating the DAR’s broad campaign against peace activists and reformers.[60] “Magnifying once-hidden differences among women from similar backgrounds, the DAR’s blacklists served as the final nail in the coffin for long-standing alliances, an ineluctable sign that women who had considered themselves natural allies were now enemies.”[61]

And voila: a new conservative movement was born. A new female movement was born. And a unified female voting bloc, once feared by men and male elected officials, was no longer a threat.[62]


The crowning achievement of this work is its extraordinary depth. Delegard supports 217 pages of text with 79 pages of notes and an index of concepts and acronyms. She draws not only from historical analyses, but also from primary sources whose pages had been left relatively unturned by mainstream historians. She integrates the archives of the national headquarters of the Daughters of 1812[63] with newspaper records, War Department memoranda, Military Intelligence Division correspondence,[64] and many more sources.

Because this book is so well researched, it not only addresses the who’s, what’s, where’s, and when’s of the female antiradical movement. It also answers the why’s and how’s—at the individual, organizational, and philosophical levels. In order to answer these questions, Delegard delves into the evolution of women’s organizations such as the Daughters of the American Revolution (DAR), the Women’s International League for Peace and Freedom, the Women’s Joint Congressional Committee, and the General Federation of Women’s Clubs (GFWC). She makes the story even more flavorful by using abbreviated yet detailed mini-biographies of women who led and financed these organizations. For example, spotlight pages are dedicated to Flora Walker, chairman of the DAR’s National Defense Committee, whose name became synonymous with antiradicalism.[65] Delegard uses personal journals, DAR correspondence, DAR proceeding minutes, publications, and other sources to bring Ms. Walker to life.[66] She details Walker’s interest in antiradicalism, which stemmed from the Seattle labor strike, her personal romantic life, and of course her DAR involvement and leadership.[67] Similar mini-biographies of DAR president general Grace Brosseau,[68] DAR financier Helen Gould Shepard,[69] anti-suffragist and president of the Massachusetts Public Interests League Margaret Robinson,[70] Kentucky GFWC leader Georgia Martin,[71] chief of the Women’s Auxiliary Intelligence Bureau for Massachusetts Elizabeth Lowell Putnam,[72] prominent social reformer Florence Kelley,[73] reformer Helen Tufts Bailie,[74] and many more reformers, radicals, and antiradicals bring enormous insight to the narrative and humanize its characters.


One of the major difficulties of this work is that the wealth of information explored presents organizational difficulties. The author has partially solved this problem by providing summaries at the close of each chapter. Still, the author embarks on the same timeline multiple times throughout the book rather than remaining chronological throughout, resulting in a significant amount of repetition and occasional complication. This makes the read require significant focus to get the most out of it.

Overall, this work leaves the reader with an eye-opening understanding of the evolution of female and conservative political involvement and tactics. What is more exciting to me personally is that it provides a launching point for greater interest in and exploration of women’s conservative activism. For example, how does this narrative fit into the overarching narrative of the 1920s?[75] What is the significance of these developments through the lens of the conservative movement as a whole? How did these battles between middle class white women interact with the activism of women of color and of lower socioeconomic status?[76] What connections can we draw between the female antiradicals of the 1920s and the female antiradicals of today? What makes female antiradicals effective or not effective, and what could female reformers of today do to more effectively combat their efforts?

Even more questions arise in the wake of recent political events. In the age of social media, 24-hour news, and the 2008 Democratic presidential primary race, do we still need women to fight women? What does the fact that there are now more women than ever in Congress mean for that fight? And after the 2012 election cycle’s “war on women,” might this critical mass of congresswomen have the potential to realize the united reformist women’s front envisioned by the women reformers of the 1920s?

Cite as: Misty Wright, Book Review, Harv. J.L. & Gender, (Jan. 2013) (reviewing Kirsten Marie Delegard, Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States, (2012)), www.harvardjlg.com/2013/01/book-review-battling-miss-bolsheviki.

* Harvard Law School, J.D., Class of 2013.

[1] Kirsten Marie Delegard, Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States 49 (2012) (internal quotations omitted) (quoting a poem accompanying the 1923 Spider Web Chart, discussed infra, Part II).

[2] Id. at 7.

[3] See id. at 16.

[4] Id. at 2.

[5] See id. at 3.

[6] See id.

[7] Id.

[8] See id. at 4.

[9] See id. at 5.

[10] Id. at 14.

[11] Id.

[12] See id. at 13.

[13] See id. at 13–15.

[14] See id. at 11.

[15] Id. at 87.

[16] See id. at 142.

[17] Id. at 209.

[18] See id.

[19] Id. at 215.

[20] See id. at 216.

[21] Id. at 216.

[22] Id. at 217.

[23] See id. at 8.

[24] See id. at 8–9.

[25] Id.

[26] Id. at 20.

[27] Id. at 28.

[28] Id. at 31. Delegard also notes that using the violation of women to justify military action was common throughout U.S. history. Id. Further, the Bureau of Free Love (where women were used sexually) was the most sensational myth about Bolshevik Russia. Id. at 29.

[29] See id. at 56.

[30] See id. at 15. Female conservative activists’ “opposition to radicalism was deeply gendered, for it was motivated by the belief that these ideologies aimed to dismantle the patriarchal protections that provided shelter and care to women and children.”

[31] See id. at 71.

[32] See id. at 56 (“Women who became conservative activists believed that radical ideologies menaced their homes, churches, and personal safety.”)

[33] See id. at 174.

[34] Id. at 179.

[35] See id. at 13, 174.

[36] See id. at 87.

[37] See id. at 173.

[38] See id. at 55.

[39] See id. at 38–39.

[40] See id. at 35–38. Antiradicals saw these female peace activists as duped, but one inherent tension left unexplored in the book is that female antiradicals were clinging to false information from the Overman Committee hearings (and other false propaganda) from the antiradical movement’s inception.

[41] Id. at 40.

[42] See id. at 39, 42.

[43] Id. at 15.

[44] See id. at 37.

[45] Id. at 48.

[46] Id. at 48–49.

[47] See id. at 54–55.

[48] Id. at 85.

[49] See id. at 68.

[50] See id. at 85.

[51] See id. at 87.

[52] See, e.g. id. at 93 (discussing the Women’s Patriotic Conference on National Defense).

[53] See id. at 149.

[54] See id. at 114, 129.

[55] Id. at 114.

[56] See id. at 120 (for a discussion of the Child Labor Amendment’s defeat at the local level); id. at 214 (for a discussion of the Equal Rights Amendment’s defeat at the local level).

[57] See id. at 147.

[58] See id. at 146.

[59] See id. at 147, 160.

[60] See id. at 161.

[61] Id. at 179–180.

[62] See id. at 144.

[63] Id. at 13.

[64] Id. at 258 n.97.

[65] See id. at 103.

[66] See id. at 97–103.

[67] See id.

[68] See id. at 95.

[69] See id. at 100.

[70] See id. at 122.

[71] See id. at 131.

[72] See id. at 137.

[73] See id. at 151.

[74] See id. at 175.

[75] See id. at 33. Female reformers did not eclipse the image of immigrant radicals as agents of subversion, raising the question: how significant were they in a broader context? Id.; see also id. at 142 (“[T]his countersubversion work likely did little to influence the activities of committed revolutionaries.”)

[76] Delegard talks intermittently about race and class.  See, e.g. id. at 4 (maternalists’ purported female unity left out many races and political persuasions); id. at 29 (fear of mixing classes and races); id. at 59, 174 (reinforcement of class and racial hierarchies); id. at 174 (reformers and antiradicals had the same racial and ethnic prejudices).


“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.


Book Review 1 — In Defense of Women: Memoirs of an Unrepentant Advocate

A student review of Nancy Gertner's 
In Defense of Women: Memoirs of an Unrepentant Advocate

Boston, MA.  Beacon Press.  264 pages.  $26.95 (hardcover).
Posted: February 16, 2012 at 9:02 p.m.

Review by: Elizabeth Jensen
Harvard Law School
Class of 2014

Click here to access a PDF of the book review.

In Defense of Woman is more than a story about a feminist attorney.  It is the story of a woman who entered a still bigoted profession, and carved her way.  It is the story of the clients she took on and the causes for which they fought.  Gertner writes candidly about the costs as well as the rewards of her life in law up to her appointment as a federal judge in 1993.  For aspiring female attorneys, Gertner’s book is an insightful read. 

Since the start of her career in 1975, Gertner early began keeping a “Sexist Tidbits” file, the kernels of many of her book’s stories.[1]  These anecdotes could have the effect of moving the reader from outrage to outrage, pulled along by a sense of anger at an anti-women establishment, but Gertner’s candid writing and thoughtful insights keep the work from falling into this trap. The sexist comments by judges, comments about plaintiffs and about herself, the news clippings and court room incidents that arose from the entrenched old boys network—all are painted into a portrait in shades of gray rather than in black and white.

We get an idea of Gertner’s motivation and shaping forces through her description of her close relationship with her very traditional father (he did not approve of her mother working or driving).[2]  Gertner writes that through their debates—really more like arguments—she learned to disagree vehemently while still respecting and even loving her opponent; that growing up she did not have women role models doing what she wanted to do; and that although she loved and respected her mother, she did not want to become her, or so she thought.[3] As a young female attorney she forged her path without clear guideposts.

Much of Gertner’s professional life was spent, as suggested by her book’s title, defending women: sexual harassment, sexual discrimination, malpractice, battered women, abortion, lesbian women seeking custody of children. The book tells the stories of Gertner’s life and her cases, recalling the legal choices as well as the personal decisions behind them, both client decisions and decisions she made about her own professional and moral compass.

Gertner writes fluidly about the legal strategizing, her prose painting firm, clear strokes.  Her first case, defending anti-Vietnam activist Susan Saxe in a murder charge stemming from a bank robbery, presents both the ideological and procedural considerations. Saxe was a defendant heavily involved in her own case, and wanted the legal team “to reflect her feminism.”[4]  Gertner had to teach herself legal procedure.  Legal work was like “learning a language”[5] and immersion was the way to learn quickly.  She describes in deft detail the intense preparation for court and the payoff: an unexpected victory in her first major case.

The Saxe case went for months before Gertner and her team nailed down a substantive argument.  Throughout her book, Gertner emphasizes the creative thinking needed for substantive reasoning.  These creative arguments are a good window into the evolution of the law, of the evolving definitions of medical malpractice and sexual harassment.  Gertner utilizes an advocate’s approach as she presents these issues, leaving the reader curious about as to what Gertner herself thought of the decisions and compromises she made. 

Though we’re left wondering how Gertner the lawyer felt about some of the gray she encountered in her work, discussing controversial issues through the lens of cases and stories gives the work emotional pull. While we wish to hear the reflections of the advocate, her silence leaves room for readers to reflect for themselves on the gray areas.  The case of a physiatrist who started a sexual relationship with his client illustrates this point.  At the time, there were questions about whether such conduct even qualified as malpractice.[6]  He called it “therapy”[7] and said that his client’s problems were not his fault, as “she was a ‘global disaster’ long before they met.”[8]  As expected, Gertner argued passionately against this self-serving characterization. She writes that in this environment, not knowing much about medical malpractice was unexpectedly “a strength.”[9]  She would focus her argument on how the exploitation and dehumanization of the situation ran directly counter to the purposes of therapy.  It was a new concept of malpractice, but one that fit well within the existing framework.

In the end, she writes of the legal process as a kind of “‘law cure”’ that helped her client develop agency and confidence far more than her years of therapy ever did.[10]  At the same time, the client did not consider herself to be an actor in the ongoing evolution of the meaning of medical malpractice.  When asked later to testify in another case brought against the same physiatrist, her former client refused.[11]  Gertner ends the chapter with a discussion she had with her hairdresser. He tells her about a jury on which he had served.  It was a malpractice case against a psychiatrist for sexual improprieties.  Without other women coming forward, the jury was unable to convict.  Gertner asks the defendant’s name and learns that it was Dr. X, the defendant from her own case.[12]  She does not write of any emotional response she had to the news, and it is left to the reader to reflect on the choice of the client not to testify and what it means that Dr. X continued his practice. 

Both the Saxe case and the Dr. X case are illustrative of the way in which Gertner combined “‘insider privileges’” with an “‘outsider consciousness.’”[13]  For Gertner, being a successful woman in the profession required carving out an identity in the old boys network.   However, this familiar theme could have been further elaborated.  While Gertner was clearly an outsider to the traditional old-boys network, her atypical clients and innovative arguments provided the foundation on which to build a successful and distinguished career.  Such clients and causes of actions meant the outsider was coming into the courtroom.  While the existence of the Sexist Tidbits file was itself a coping mechanism for the sexism she encountered, Gertner’s own success seems in some ways to belie the difficultly of the problem.  In many ways, Gertner seems to credit her very outsider status as giving her the opening she needed to carve out her place in the system, a circumstances which could have been further explored throughout the work.

As a young woman, Gertner was better able to relate to certain clients and young jurors, and was seen as a more appropriate face for certain causes.  She was the “flower child” lawyer,[14] the female advocate with the seventies sensibility and the Yale law school training.[15]  This outsider status gave her cachet and media attention, providing a strong, early foundation on which to build a successful practice.  One wonders how Gertner’s experience compared to young male lawyers, right out of law school, who did not have an outsider hook to carve out a courtroom identity. 

Gertner’s story is also one of transition from the “flower child”[16] advocate into a more traditional professional role.[17]  She recalls that early on she was opposed to what she thought professionalism meant, as she felt that it “separated the lawyer from the client [and] encouraged elitism.”[18]  This attitude changes, and the reader yearns for more self-reflection on this point. Certainly, there is plenty to suggest that the transition to the more professional route was not smooth.  When working with her male partner to defend a political corruption case, her male partner would get the press.[19]  Though Gertner had practiced law for over twelve years, some still assumed that he was the one pulling the strings.

When she took high profile cases which were traditionally handled by the male establishment and not linked with what might be viewed as women’s causes, she gathered even more fuel than usual for her Sexist Tidbits file.  She writes that in truth these high profile political cases belonged to her male partner, not herself—she was brought in for her trial expertise. [20]  While Gertner argued and won against many male attorneys and carved out a place in the male-dominated courtrooms, the cases in which she developed her skills involved female clients or women’s causes.  Even when she later took a main role in the trial for the case, she was not given credit in the press.  Despite successful and extensive trial work she was not considered among the “top trial lawyer[s]” appropriate for a notorious political case.[21]  The idea that there may be certain areas of the law in which men assume women are not found or should not be taken seriously is a major issue that deserved further exploration in the book.  As a reader I would have liked more discussion about the differences between being a female attorney working on “feminist issues” versus working on traditional, male dominated cases. 

After the political corruption cases, Gertner discusses another incident which may be considered a woman’s issue, a rape case—but in this case, she represents the alleged perpetrator. Though at first reluctant to take the case, she ultimately does because she believed he was innocent.[22]  She talks of his case in a chapter entitled “A ‘So-Called’ Feminist,” starting the story at the end, when her feminist credentials are challenged for taking and winning the case.[23]  From the side of the defendant, the reader can see the dangers when the pendulum, even in the case of rape, swings too far in the direction of the accuser.  Her discussion illustrates the role politics played in the case. It had become politically risky to find against a plaintiff in a rape case, as courts were reluctant to “send the wrong message” in this developing area of law.[24]  Believing her client’s innocence, Gertner won a victory even more sweeping than she could foresee, setting a precedent which pushed the pendulum back toward defendants by giving judges greater ability to overturn cases by giving them the option to review psychotherapy-patient records.[25]  Beyond merely recognizing the shades of gray in the system, Gertner herself was willing to take on shades of gray herself, and endure the political flak from groups that saw the world in black and white.  She ended up pushing the pendulum in both directions, setting up a deep-seeded impression of the need for balance which would be invaluable for the next stage of her career.                 

Gertner ends her book with her appointment as a federal judge.  It is a testament to the engaging prose and lively insights that on reaching the end of the book, one wants to know more of that next chapter of her life and her perspective from the bench.  Gertner writes about the female judges she encountered, usually followed by the observation that they were the first female judge in that district or the only female judge on that panel.  There is a sense of satisfaction as Gertner joins their ranks in the end.   



[1] Nancy Gertner, In Defense of Women: Memoirs of an Unrepentant Advocate xi (2011).


[2] Id. at 13.


[3] Id. at 127.


[4] Id. at 16.


[5] Id. at 30.


[6] See id. at 70–71.


[7] Id. at 67.


[8] Id. at 68. 


[9] Id. at 69.


[10] See id. at 72.


[11] Id. at 80.


[12] Id. at 82.


[13] Id. at 53.


[14] Id. at 16.


[15] Id. at 53.


[16] Id. at 16.


[17] Id. at 110.


[18] Id. at 15–16.


[19] Id. at 111.


[20] Id. at 108.


[21] Id. at 110.


[22] Id. at 155­–56.


[23] Id.


[24] Id. at 168.


[25] Id. at 174.





In Defense of Women: Panel Discussion and Book Reviews

Click the image to see the full-size poster.

Panel Discussion

Coinciding with the publication of Judge Nancy Gertner's new book, In Defense of Women: Memoirs of an Unrepentant Advocate, the Journal of Law & Gender is joining with the Harvard Law School Library, the Harvard Women's Law Association, and the Harvard American Constitution Society to sponsor a panel discussion on women in the law.

Panel members will include Judge Gertner, Dean Martha Minow, Professor Carol Steiker, Attorney General Martha Coakley, and NPR's Robin Young.

Join us Tuesday, February 21, at 6 p.m. in Austin Hall West 111. Refreshments will be served.

Book Reviews

Journal members Amy Chmielewski, Elizabeth Jensen, and Laura Wolf offer reviews of Judge Gertner's new book.

Excerpt from Amy Chmielewski's review:

But reading Judge Gertner’s memoirs may prompt readers to ask another question in response: what is lost when judges’ voices are confined to the courtroom—when the legal profession abides by the fiction that judges, once appointed, can and should easily efface their past experiences, their personalities, preferences, and politics?  Surely we are more honest when we acknowledge that judges come to the bench not as blank slates, but as palimpsests.  Surely the profession is made richer by accounts like Judge Gertner’s that force us to face the complexities of human nature that law and legal ethics sometimes instruct us to ignore.

Click here to read the full review. 

Excerpt from Elizabeth Jensen's review:

Much of Gertner’s professional life was spent, as suggested by her book’s title, defending women: sexual harassment, sexual discrimination, malpractice, battered women, abortion, lesbian women seeking custody of children. The book tells the stories of Gertner’s life and her cases, recalling the legal choices as well as the personal decisions behind them, both client decisions and decisions she made about her own professional and moral compass.

Click here to read the full review.

Excerpt from Laura Wolf's review:

Irony of ironies, one of the reasons Gertner is so successful is because no one gave her a break.  The media ignored her, judges chided her, and yet she persisted.  Being a woman—excluded from the “boy’s club”—and a young attorney gave her no choice but to be innovative.  In the Saxe case, to undermine witness testimony identifying a purple dress allegedly belonging to the defendant, Gertner asked a number of women in the courtroom to wear various shades of purple.This had the best effect imaginable: the witness picked out a dress in court that failed to match the shade of the dress found by the police.

Click here to read the full review.


Book Review 2 — In Defense of Women: Memoirs of an Unrepentant Advocate

A student review of Nancy Gertner's 
In Defense of Women: Memoirs of an Unrepentant Advocate

Boston, MA.  Beacon Press.  264 pages.  $26.95 (hardcover).
Posted: February 16, 2012 at 9:02 p.m.

Review by: Amy Chmielewski
Harvard Law School
Class of 2013

Click here to access a PDF of the book review.

In August of 2010, several months before In Defense of Women was released, a Boston Globe writer questioned the book’s propriety.[1]  Calling its title “very unjudicial,” he wondered: can a clear line be drawn between past and present?[2]   When a judge reflects upon her career as a civil-rights and criminal-defense attorney, does she undermine her obligation to refrain from commenting on matters that may come before her?[3]

            But reading Judge Gertner’s memoirs may prompt readers to ask another question in response: what is lost when judges’ voices are confined to the courtroom—when the legal profession abides by the fiction that judges, once appointed, can and should easily efface their past experiences, their personalities, preferences, and politics?  Surely we are more honest when we acknowledge that judges come to the bench not as blank slates, but as palimpsests.  Surely the profession is made richer by accounts like Judge Gertner’s that force us to face the complexities of human nature that law and legal ethics sometimes instruct us to ignore.

  1. The Advocate and the Jurist

            Nearly all of the 260-odd pages of In Defense of Women focus on the author’s experiences as an advocate, especially during the early years of her career.  But, in a sense, Judge Gertner is as much a part of the narrative as Advocate Gertner.  The book’s preface begins with an anecdote: in the late 1990s, both the author and Sonia Sotomayor—then sitting on the Second Circuit—were invited to give advice to a group of aspiring judges at Yale Law School.[4]  Justice Sotomayor counseled the students to be outstanding performers in school and in the profession, but moreover, she warned them to tread carefully, to have “clear principles” but avoid becoming associated with “controversial causes.”[5]   Then Judge Gertner outlined her own path to the bench, the highlights of her professional and personal life: begin by defending a “lesbian, feminist, radical anti-Vietnam War activist accused of killing a police officer” in a hugely high-profile case, then “take every abortion case in the Commonwealth of Massachusetts,” and just in case you haven’t made your political bent clear enough, marry the legal director of the ACLU’s Massachusetts chapter.[6]

            As her memoir illustrates, Judge Gertner applied for a seat on the federal bench not in spite of her controversial background, but because of it.  In a meeting with Senator Edward Kennedy that may have won her the Senator’s support, she asked him point-blank to recommend a civil-rights lawyer to the judiciary.[7]  Doing so would not only signal the Senator’s support for civil rights, it would “validate the career path” for aspiring civil-rights lawyers.[8]  A risky strategy, of course, but it worked.

            In Defense of Women ends with a brief account of the author’s confirmation process.   Unsurprisingly, it was bumpy and uncertain—though not for the reasons a reader might expect.[9]  While Judge Gertner refrains from commenting directly on the politics of the confirmation process in the abstract, this section of the book invites readers to consider the state of judicial nominations today.  It is difficult to imagine Gertner’s nomination surviving the current Senate, where the confirmation of so-called “activist” judges are routinely stalled or blocked altogether.  As a result, 90 of 858 judgeships on the appellate and district courts were vacant as of January 2011.[10]   Many would-be appointees accused of “activism” have had careers that look downright tame compared to Gertner’s (take, for example, Caitlin Halligan, whose appointment to the D.C. Circuit has been stymied in part because as Solicitor General for the state of New York she signed her name to briefs arguing that gun manufacturers should not be shielded from tort liability).[11]

            What does it mean when an “unrepentant advocate,” or even a dedicated public servant, is unable to ascend to the federal bench, despite being eminently qualified for the job?  Gertner’s career illustrates what we are in danger of losing.  Perhaps her career sends a hopeful message as well—an assurance that, indeed, it is possible for our representatives to abandon political deadlock and help build a judiciary that better reflects the breadth and richness of the legal profession. 

  1.    Lessons for Young Lawyers and Law Students

While In Defense of Women is the kind of book capable of attracting a wide audience, it often seems to speak in particular to new or aspiring lawyers and law students.  When the first chapter opens, the narrator is young, just a few years out of school.  She lives in a Cambridge one-bedroom, drives a beat-up car, and has only recently come to accept the fact that sometimes her job requires her to put on a dreaded suit.  Her idealism has managed to survive three years of law school, and then leads her to make the sorts of keen but risky choices that would come to define her career.  Nancy Gertner is barely thirty years old, and has almost no trial experience, when she takes the lead to defend Susan Saxe, accused of the felony-murder of a Boston police officer killed during a bank robbery conceived as an anti-Vietnam protest.[12]  The trial results in a hung jury—in many senses an unlikely victory—although Saxe pleads guilty rather than face the chance of conviction following a second trial.[13]

            Enthralled by this early coup, the reader is pulled into a coming-of-age story.  We discover how much the young Gertner still has to learn.  Readers follow the author as she learns to command a courtroom, to reconcile her interests with those of her clients, and to reap the benefits of her “outsider” status (the author reflects, “I was in a position to make choices that others would not.”[14]).  Readers also witness Gertner’s journey through young- and middle-adulthood.  Gertner falls in love with and then marries a colleague; she raises two children; she outgrows the firm that launched her career.  Young lawyers who fear moments of transition in their careers, or who doubt that they can raise a family while engaging in meaningful work, should find the memoir reassuring. 

            Just as I query whether Nancy Gertner could be confirmed to the federal bench in our current political environment, I also wonder whether a newly minted lawyer today would be able to forge a career path similar to Gertner’s.  A voice—perhaps a cynical voice—within me says ‘no,’ pointing to the differences between the legal landscape today and that of the 1970s, before large firms became huge firms, and when the high costs of litigation were not yet astronomical.  It’s also hard to ignore the confluence of happy fortuities that allowed Nancy Gertner to become the lawyer she is.  For example, were it not for Susan Saxes’s idiosyncrasies, which led her to seek out a young woman lawyer instead of a seasoned man with dozens of acquittals under his belt, Gertner would not have had such a spectacular opportunity so early in her career.[15]  But of course, once Gertner had the Saxe case, it was clearly a combination of wit, talent and extreme dedication, much more than luck, that propelled her to success.

  1.      Conclusion

            As In Defense of Women reminds us, judges are lawyers.  Speaking as both lawyer and judge, Nancy Gertner counsels young and aspiring members of the legal profession to take control of their careers, rather than surrender control to colleagues, superiors, or clients; to take intelligent risks; and to understand lawyering as an ethical endeavor. 

            She also prompts us to consider what we want and expect from our federal judiciary.  As the author explains, she never intended to end up on the bench; in fact, in the early years of her career, she longed to be a law professor.[16]  With academia in mind, Gertner was free to support controversial causes and argue for novel interpretations of the law.  Today’s future judges, it seems, cannot do the same.  They are surely wiser to follow Justice Sotomayor’s advice and lie low.[17]  And sadly, in so doing, they may find that they cannot be the kinds of lawyers they want to be.

[1] Jonathan Saltzman, Judge’s book raises some eyebrows; Gertner memoirs focus on her decades as advocate for women, Boston Globe, Aug. 19, 2010, at B1.


[2] Id.


[3] Id.


[4] Nancy Gertner, In Defense of Women: Memoirs of an Unrepentant Advocate ix (2011).


[5] Id.


[6] Id. at x.


[7] Id. at xiii.


[8] Id.


[9] See id. at 243–45.


[10] Carl Tobias, Where are all the federal judges? Why 90 empty seats threaten American justice, The Christian Science Monitor, Jan. 5, 2011, http://www.csmonitor.com/Commentary/Opinion/2011/0105/Where-are-all-the-federal-judges-Why-90-empty-seats-threaten-American-justice.  See also Carol J. Williams, Federal logjam leaving judges’ seats empty in federal courts, L.A. Times, Aug. 30, 2010, http://articles.latimes.com/2010/aug/30/nation/la-na-judicial-logjam-20100831.


[11] See Charlie Savage & Raymond Hernandez, Filibuster by Senate Republicans Blocks Confirmation of Judicial Nominee, N.Y. Times, Dec. 6, 2011, http://www.nytimes.com/2011/12/07/us/senate-gop-blocks-confirmation-of-caitlin-halligan-as-judge.html; Brief of the New York State Attorney General as Amicus Curiae Supporting the City of New York’s Cross-Appeal and Reversal of the Portion of the District Court's Decision Addressing the Constitutionality of the CAA, City of New York v. Beretta, 524 F.3d  384 (2008) (Nos. 05-6942-cv, 05-6964-cv, 05-6711-cv, 05-6673-cv), 2006 WL 5582282.  See also People ex rel. Spitzer v. Sturm, Ruger & Co., 309 A.D. 2d 91 (N.Y. App. Div. 2003).


[12] Gertner, supra note 4, at 1, 35.


[13] Id. at 47–49.


[14] Id. at 59.


[15] Id. at 16–18.


[16] Id. at 7.


[17] Id. at ix.




Book Review 3 — In Defense of Women: Memoirs of an Unrepentant Advocate

A student review of Nancy Gertner's 
In Defense of Women: Memoirs of an Unrepentant Advocate

Boston, MA.  Beacon Press.  264 pages.  $26.95 (hardcover).
Posted: February 16, 2012 at 9:02 p.m.

Review by: Laura Wolf
Harvard Law School
Class of 2013

Click here to access a PDF of the book review.

Former district judge Nancy Gertner writes about her career before ascending to the bench, painting a portrait of a staunch trial lawyer who represented women in key areas of the law—such as abortion rights, sexual harassment, employment discrimination, and medical malpractice—and who helped push the law forward with her cases.  As a second-year law student, I plan to spend my career litigating causes, either in the courtroom or through impact litigation.  Within the pages of Judge Gertner’s book, I found the confirmation that others share my zealous attitude, and that it takes a committed advocate to match Nancy Gertner’s effectiveness.

These pages truly are, as promised by the book’s title, memoirs of an unrepentant advocate.  Though Gertner does not describe it as such, she acted as her own advocate when she followed her heart to Barnard College and then Yale Law School in spite of her father Moishe’s wishes that she fulfill the more traditional female roles of mother and wife.  Gertner references many instances in which she was treated differently, often unfairly, for being a woman.  At each impasse she stands up for herself, be it by going to the Superior Court of Massachusetts to demand state assignment of murder cases[1] or by turning the concept of “having it all” (marriage, kids, career) into a joke at her twentieth college reunion.[2]  Gertner knows when to pick a fight, and when she decides to stand up for what she believes in, she gives it all she’s got.  She appears unfamiliar with the concept of getting her feet wet first, preferring always to dive right in.

This zeal, along with the ability to shrug off the little things, translates seamlessly into the representation of her clients, since Gertner cannot help but identify with them.  Gertner begins her book with the case of Susan Saxe, quickly paralleling her upbringing with Susan’s,[3] and noting that even Saxe’s mother seemed to get the two confused.[4]  Similarly, in a medical malpractice case where the client’s psychiatrist manipulated her into having sex, Gertner recalls how she believed the client partially, if not mainly, because she once had a dentist who fondled her breasts.[5]  Finally, during closing arguments in a murder case, Gertner sat on a chair, ominously rocking back and forth, and spoke in the first-person, as though she were the defendant,[6] describing her intention to “relive Lisa’s story . . . . [to] transform myself into her.”[7]   I wondered throughout if it was almost easier for Gertner to advocate so passionately for someone once she transposed the client onto her self, her personhood.

While I hope to become an equally passionate advocate some day, I worry about the negative effects it may have on a cause.  It becomes so easy to get swept up in a client (and of course legally one is obligated to do just that) such that a cause may be hurt by the representation.  Yet, I find that Gertner often equates her legal duty with empathy, likely because she puts herself so deeply in her client’s shoes.  In doing so, it appears that she excuses turning a blind eye to a cause because of her ethical obligations when in reality it’s due to her personal feelings.

For instance, at the time when Gertner represented a woman charged with first-degree murder, there existed only an inchoate concept of using Battered Women’s Syndrome (“BWS”) as a self-defense argument.[8]  Gertner succeeded in convincing the judge that BWS could be used as grounds for self-defense,[9] and in doing so hoped to push the law forward as well as win the case for her client.  She writes: “[T]he empathy was real . . . .  I represented Lisa, not society.  I was an advocate, not an academic, and surely not a judge.  I feared a first-degree murder conviction for this troubled and tortured woman far more than I feared the implications of runaway battered woman syndrome defenses.”[10]  This entire paragraph is confusing, as it conflates the reasons behind Gertner’s disinterest of her effect on future cases.  The middle of the paragraph suggests she is simply doing her legal duty as an advocate; Lisa, not society, was the client.  Yet this is cushioned in self-identification and personal feelings, beginning with empathy and ending in fear.  Empathy and fear are not terms one uses in discussing the legal obligation to represent the client above all else.  So what is the real reason that Gertner sides with her client: an ethical duty or her personal feelings?  More importantly, should it matter?

In a different case, Gertner represents a young man accused of rape, and in doing so inadvertently sets back rape victim’s rights in Massachusetts for about fifteen years.  While Gertner was “stunned”[11] with the Massachusetts Supreme Judicial Court’s far-reaching decision,[12] she does not appear as critical of her role or, at least, foreboding about the dangers of litigation as I had hoped she would be.  She explains away the decision by saying: “Advocacy is unlimited.  Once you are enlisted to represent someone, you must do everything you can that is lawful to secure his liberty.  You cannot control the outcome, the court’s reasoning, the impact on other cases.”[13]

I find it difficult to criticize someone’s career choices, as I know I will undoubtedly make endless blunders and at least a few serious mistakes in my professional life.  Yet, reading Judge Gertner’s description of this case, I cannot help but feel as though the disastrous result[14] was partially due to the fact that Gertner did not actively participate in her client’s case until the bail hearing and appeal.  She assumed first that the client would never be indicted, and left it to another lawyer to effectuate that end.[15]  He failed.[16]  She then believed the client would be acquitted, and let the same lawyer handle the trial.[17]  The judge convicted.[18]  If Gertner had stepped in from the start, perhaps her client would never have been indicted, least of all convicted.  In turn, no appeal would have ever been made, and no bad precedent set.  Yet at no point does Gertner reflect on this possibility, and I critically wonder how much this case’s result can be excused with the argument that being an advocate comes before all else.  Personally, I wish that Gertner had openly said that she perhaps mismanaged this case by passing it off, and in doing so caused a ripple effect that she did not foresee.  While it is true that once you take on the role of litigator you give up control over the cause and any future cases, there are times where the result is more in your control than you care to believe.  Gertner misses an opportunity to warn future litigators that sometimes you do make mistakes, that not all setbacks can be excused or explained by your legal duty to zealously represent your client.

            In spite of this, what I love about her memoirs is that Gertner is not modest; she gives herself credit when it is due, and unabashedly speaks to her ability to win an impossible case.  I must admit that at first this surprised me; it felt off-putting.  Then I realized: No—this is exactly what feminists should demand of ourselves!  Gertner is a woman doing what few women have the courage to do: admit to being the best. 

Irony of ironies, one of the reasons Gertner is so successful is because no one gave her a break.  The media ignored her, judges chided her, and yet she persisted.  Being a woman—excluded from the “boy’s club”—and a young attorney gave her no choice but to be innovative.  In the Saxe case,[19] to undermine witness testimony identifying a purple dress allegedly belonging to the defendant, Gertner asked a number of women in the courtroom to wear various shades of purple.[20]  This had the best effect imaginable: the witness picked out a dress in court that failed to match the shade of the dress found by the police.[21]  Even more astonishing, once the prosecution rested their case, the defense rested as well.[22]  Gertner dared to let the entire theory of innocence rest on the notion that the prosecution had not proven Saxe’s connection to the crime beyond a reasonable doubt.  In the end, the jury could not reach a decision, and the judge declared a mistrial.[23]  This was a case that was supposed to be a slam-dunk for the prosecutor, a male district attorney who had only lost one murder case out of the two hundred he had tried in his career.[24]  It’s this type of risk-taking that we fellow women can learn from, along with using whatever is meant to hold us back, including our gender, to our advantage.

Unfortunately, women cannot benefit from all stereotypes.  As Gertner points out, “[t]he ‘bitch’ stereotype is always out there, ready to be launched if we go ‘too far.’”[25]  In truth, it is even worse than this.  During Gertner’s confirmation hearing, a requirement to become a federal judge, a Boston Herald columnist compared a liberal Gertner to Lorena Bobbitt, a woman who, at the time, had just been arrested for cutting off a piece of her husband’s penis.[26]  I felt astonished, shocked, and livid when I read this anecdote.  Would a liberal male nominee ever be compared to a man arrested for disfiguring women’s bodies?  

One of my biggest fears is that female attorneys—and women generally—will never get to a point where men, frustrated with our success and capabilities, do not have the power to cut us down by calling us a “bitch” or by insinuating that successful women are deranged.  Since I doubt this type of slander will ever cease, I wonder if the solution lies with us, with our reaction.  Gertner barely seems to flinch when recounting the editorial.  Is the answer to ignore or make light of these attacks?  Earlier in her career Gertner wrote a letter to protest a sexist column in Massachusetts Lawyers Weekly and the response was a flood of attacks for being “humorless.”[27]  So if we fight, we are humorless, which really means to say that we are overreacting and thus our opinions should be diminished or dismissed outright.  Yet if we say nothing, nothing changes.  It certainly has not gotten better out there; look at coverage of any leading woman in politics and you will see what I mean.  In fact, it has been nearly twenty years since Gertner’s confirmation hearing and the media’s characterization of women remains denigrating and sexist.

Another area in which women continue to be forced to live by male standards is the workplace.  Fortunately, this area is one in which we have seen some progress, though not as much as one would hope.  In the early 1970s, Gertner accepted that to succeed she had to, and did, act like a man.  She concedes that women “couldn’t begin to talk about transforming the workplace to make it more human . . . until we had become a full-fledged part of it.  We simply accepted the premise that the workplace would reflect the needs of its incumbents, who then were all male.”[28]  Yet, haven’t we all heard the same thing come from women we know, if not ourselves, today?  Forty years later and we still make the excuse that things cannot change until we become integrated—then it was into the workforce, now it is into the upper echelon.  

While I concede that much has improved, undoubtedly due in part to the efforts of Gertner and others who work towards furthering women’s equality, at a certain point we need to stop playing the game, climbing the same corporate ladder, and start demanding change from the outside.  During recruiting season at law firm callback interviews, I openly questioned why I met only one woman at one firm, and why at another there was only one female litigation partner in the medium-sized office.  These are leading litigation firms whose work I highly respect.  Both firms responded honestly and graciously to my concerns, putting me in touch with women in the firm, explaining that they were looking into the gender disparity, and so on.  Though one female student’s voice may not be enough to rock the boat completely, if we all take part in making our message clear—that we want equality now, not some day down the road—this is a result we can achieve. 

Don’t let Gertner’s comments about the workforce fool you; she too openly rejected backwards thinking, even at the start of her career.  When one attorney refused to address her, instead directing responses to her male partner, both she and her partner wrote indignant letters refusing to work with the lawyer “until he emerged from the dark ages and started dealing with [Gertner] as his equal.”[29]  First, I applaud that both Gertner and her male partner wrote these letters.  One of the most important ways for women to change these persistent stereotypes that diminish our value is by getting men to advocate on our behalf as much as we do.  Second, I cannot help but quote a segment of Gertner’s letter here, since I felt immeasurable joy and pride in reading it:  “It both angers me and saddens me, that there can be people who can be so obtuse that they do not see change when it is upon them.  Perhaps you and your colleagues will change when your myopia once again leads you to sadly misjudge a woman opponent, to lose substantially because you have undervalued your opposition.”[30]  True to form, Gertner says what I only wish more women were comfortable saying.  My advice is for all women to take from this book the fighting spirit imbedded in each page, and use it in all aspects of our lives, most especially our careers.

On the first page of her book, Gertner writes: “Empathy was a given.  Detachment is what I had to learn.”[31]  By the last page, it seems Gertner never did learn detachment, at least not in her career as a trial lawyer.  I wonder if she ever could have learned it.  Personally, whenever I have tried I have failed, so much so that friends joke with me about burning out before I turn thirty.  Yet I wouldn’t know any other way to be, just as I am sure Gertner does not. 

Reading her book, I thought about my experience meeting Judge Gerner during my first semester of law school.  My Legal Research and Writing instructor clerked for a District of Massachusetts judge, and asked fellow District Judge Gertner to let us observe her in court.  She agreed to let our first-year section come in and ask her questions, hear about her job, and see a federal courthouse.  I remember she discussed how she hated being forced to give such high sentences for drug crimes, so much so that she would write long footnotes about the need to reform mandatory minimums.  Even as a federal judge, Nancy Gertner could not detach herself from the individuals in court before her, undoubtedly making her a better judge, just as it had first made her into an extremely successful advocate. 

No law school class has shown me what a true advocate looks like the way reading Nancy Gertner’s book did.  My conclusion, cheesy as it may be, is that we soon-to-be lawyers should all strive to stand up fiercely for what we believe in and against injustices we perceive.  We will surely make mistakes, but our lives will have purpose, and our capability to help those in need will continue to grow with each new experience.

[1] Nancy Gertner, In Defense of Women: Memoirs of an Unrepentant Advocate 58 (2011).


[2] Id. at 126.


[3] Id. at 13–15.


[4] Id. at 1.


[5] Id. at 66.


[6] Id. at 130–31.


[7] Id. at 130.


[8] Id. at 140 (“I understood that my arguments were breaking new ground . . . .”).  In 1986, Gertner used BWS to argue that the “reasonable battered woman” did fear for her life even hours after threats were made, and that thus self-defense was a proper argument for the court to allow.  Id. at 138–39.


[9] Id. at 141.


[10] Id. at 151.


[11] Id. at 174.


[12] Commonwealth v. Stockhammer, 570 N.E.2d 992, 1002 (Mass. 1991) (holding that defendant’s counsel is entitled to review complainant’s psychiatric records under Article 12 of the Massachusetts Declaration of Rights).  The decision was a setback for rape victim’s rights insofar as it addressed the issue of psychiatric records.  Gertner, supra note 1, at 174.  In the appellate brief, Gertner argued that in this case the psychiatric records of the alleged rape victim should have been made available at trial.  Id.  As these conversations were privileged, the common procedure for their admittance in trial was for an in camera review, where the judge would review the materials privately and come to a decision based on what he or she read.  Id. at 173.  In this instance, Gertner had good reason to believe that the trial judge did not review the materials before ruling on the matter.  Id. at 173–74.  On appeal, the Supreme Judicial Court reversed the conviction, and also addressed the psychiatric records issue in anticipation of a second trial.  Id. at 174.  Gertner summarized the court’s decision as holding that “all of the complainant’s psychiatric and therapy records should be available to the defense—period.  There would be no prior judicial review.  What’s more, defense lawyers no longer had to make any showing to get the records.”  Id.  Yet, psychiatric records are privileged for a reason.  Gertner worried that if a woman “had been raped, she would be in dire need of counseling.  If her words to her counselor could become fodder for the likes of Bailey-Rothblatt, she would not speak, and if she didn’t speak, she wouldn’t heal.”  Id. at 173.  The irony in all of this is that the prosecutor dropped the charges after the reversal; there was no second trial, id. at 174, and thus no need for this part of the decision.


[13] Id. at 175.


[14] The result referred to is that “[o]ne privilege was totally dismantled, the psychotherapist-patient privilege, with respect to one crime, rape, and one type of victim, a woman.”  Id. at 174.  Judges interpreted this decision broadly, such that “psychiatric records would be routinely turned over [in rape cases] whether there was a ‘legitimate need’ for them or not.”  Id.


[15] Id. at 164.


[16] Id. at 165.


[17] Id.


[18] Id.


[19] In this 1976 case, Susan Saxe was on trial for murder in the first degree based on a theory of felony murder.  Id. at 23.  The trial was Gertner’s fourth ever, only three years into her practice.  Id. at 9.


[20] Id. at 35.


[21] Id.


[22] Id. at 43.


[23] Id. at 47.


[24] Id. at 10.


[25] Id. at 202.


[26] Id. at 241.


[27] Id. at 54.


[28] Id. at 180.


[29] Id. at 54.


[30] Id. at 55.


[31] Id. at 1.






A New Tortious Interference with Contractual Relations: Gender and Erotic Triangles in Lumley v. Gye

At the intersection of tort, property, and contract law sits a strange tort. It began in 1853, in London, England, from a ferocious rivalry between two competing opera-house owners. Johanna Wagner, a celebrated soprano star, had agreed to perform at Benjamin Lumley’s opera house, but before she began her engagement, she accepted a better offer from Lumley’s rival, Frederick Gye, to perform at his venue instead. Lumley pursued remedies in contract against Wagner, but also sought to bring a suit in tort against Gye. In Lumley v. Gye, a case heard on demurrer, the court extended the ancient action of enticement, and held that this kind of inducing or procuring a contractual breach could constitute a wrong capable of redress in the form of tort. Generally called interference with contractual relations in America, this tort is now a common cause of action in commercial litigation. It also formed the basis for one of the largest civil jury awards in American history.

Despite its popularity among litigants, academics routinely decry the tort and advocate its alteration, abandonment, or abolishment. They offer a compelling laundry list of the tort’s most problematic aspects. Among other issues, the tort violates the doctrine of privity of contract by imposing rights and obligations on non-contractual parties, transforms an in personam right in contract into an in rem right in tort, treats the breaching promisor as the property of the original promisee, and ignores the breaching promisor’s role in causing the breach. Most importantly, the tort infringes upon the liberty and autonomy of the breaching party, both by disregarding her freedom to choose whether to perform or breach and by impeding her ability to enter into new and more beneficial agreements.

The problems associated with the tort are easy to identify, but how it became a viable cause of action in spite of its deeply troubling features has been a more difficult question. In this Article, I show how an understanding of the tort’s gendered origin illuminates many of the doctrinal puzzles surrounding the tort. Specifically, I connect interference with contractual relations to the structure of an erotic triangle, a cultural archetype in which two rivaling men compete for a desired woman.


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