Multiple Voices as a Means to Legal Reform (A Response to Martha Fineman)

Yale Journal of Law & the Humanities Volume 5 Issue 2 Yale Journal of Law & the Humanities Article 4 January 1993 Multiple Voices as a Means to Legal Reform (A Response to Martha Fineman) William E. Nelson Follow this and additional works at: https://digitalcommons.law.yale.edu/yjlh Part of the History Commons, and the Law Commons Recommended Citation William E. Nelson, Multiple Voices as a Means to Legal Reform (A Response to Martha Fineman), 5 Yale J.L. & Human. (1993). Available at: https://digitalcommons.law.yale.edu/yjlh/vol5/iss2/4 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & the Humanities by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Nelson: Multiple Voices as a Means to Legal Reform Multiple Voices as a Means to Legal Reform (A Response to Martha Fineman) William E. Nelson It may be useful to identify the many matters about which, I believe, Martha Fineman and I agree in order to delineate more precisely our areas of disagreement. Fineman, for example, does not appear to question my historical periodization. She seems to accept my findings that the 1920s and 1930s were decades of legal enforcement of conventional morality; that the 1940s, 1950s, and 1960s were a time in which the law grew more permissive toward male sexual freedom and excess; and that in the 1970s the trend toward ever-expanding freedom was, in general, stopped and sometimes even reversed, as feminists began to articulate the harms to which excesses of freedom led. It is significant that Fineman does not question this doctrinal description of the "evolving eras of judicial action and reaction." 1 Instead, Fineman looks for disagreement by focusing on my "choices of both subject and language," on the "tendencies of selection, omission, and nuance" that shape my essay, and on "a consideration of the interstices of [my] language" (p. 346). She finds that my refusal explicitly to position myself within the range of normative scholarship addressing the subjects considered historically in my essay2 results in a narrative that is ambiguous and confusing. As is suggested by her choice of subtitle"The Plot Might Change but the Message Remains the Same"Fineman assumes that my lack of overt support for feminist normative positions amounts to a reactionary rejection of them. In fact, I have great sympathy for them. I totally agree with the fact observed by feminist scholars that the sexual freedom which judges legitimated in mid-twentieth-century New York frequently resulted in "The 1. Martha Albertson Fineman, Gender and Sexual License: The Plot Might Change but the Message Remains the Same (A Response to William Nelson), 5 YALE J.L. & HUMAN. 343, 349 (1993). Subsequent citations will be made parenthetically in the text. 2. I have always assumed that historians should strive to avoid taking normative stands on the subjects they are investigating. While I recognize that such striving cannot result in writing that is perfectly neutral and objective, it can facilitate inquiry into the complexities and nuances of the past which more partisan history might easily overlook. Published by Yale Law School Legal Scholarship Repository, 1993 1 Yale Journal of Law & the Humanities, Vol. 5, Iss. 2 [1993], Art. 4 Yale Journal of Law & the Humanities [Vol. 5: 351 Victimization of Women." ' 3 Like Fineman, I do not believe that American society during the 1950s and 1960s was marching toward a utopia of "ever-expanding notions of sexual freedom and individual autonomy" until the "radical intervention" of feminists interrupted the march (p. 344). I do not view the shift from the repression of the 1920s to the sexual libertarianism of the 1960s as a sign of progress, nor am I shocked by the feminist reaction that occurred during the 1970s. I also agree with a central methodological point that Fineman makes. Like all other intellectual constructions, my essay is a self-consciously structured exercise in interpretation. I make no claim for its perfect neutrality or total objectivity, but only for its creative originality and faithful adherence to the sources.4 I have no doubt that Fineman would have constructed an essay completely different from the one I wrote. My essay, like any that she might have decided to write, was profoundly affected by the source materials I decided to examine and the questions I chose to ask. I disagree with Fineman, however, when she takes me to task for failing to explore the problematic character of gender and sexuality as categories. While I have never doubted the value of scholarship that analyzes the social construction of gender and sexuality and thereby shows how "women and men experience sexuality as well as other social and cultural events differently" (p. 344 n.5), I did not choose to write on that topic. My essay is part of a larger project about the history of legal doctrine in twentieth-century New York, not about gender and sexuality. In my larger project, I hope to examine how particular legal developments fit within a broader doctrinal mosaic and ultimately to relate the entire mosaic, and not simply the particular narrow doctrines, to broader social and cultural developments. I believe that this is an important and legitimate approach to legal scholarship and one that can provide valuable insights into law and legal development. Indeed, I believe that my essay offers an important insight diametrically opposed to the conclusion of Fineman's critique. In that conclusion, Fineman ranks as more important than any other issue the question of "[w]ho in this society gets to define" the bounds of the law (p. 349). In contrast, I believe that the principles and standards which underlie decisions are typically more important than who makes the decisions. By her emphasis on who gets to decide, Fineman falls into the same trap that ensnared the radical feminists of the 1970s. Either women must make decisions or men must make them. Whoever makes decisions will 3. Indeed, I used this language for the title of the section beginning on p. 310 of my article. See William E. Nelson, Criminality and Sexual Morality in New York 1920-1980, 5 YALE J.L. & HUMAN. 265, 310 (1993). 4. I have elaborated my understanding of the nature of historical knowledge, with which I understand my statement in the text to be consistent, in William E. Nelson, History and Neutrality in Constitutional Adjudication, 72 VA. L. REV. 1237, 1250-59 (1986). https://digitalcommons.law.yale.edu/yjlh/vol5/iss2/4 2 Nelson: Multiple Voices as a Means to Legal Reform 1993] Nelson exercise control over the lives of those for whom the decisions are made, and in the absence of principled standards limiting what decisions can be made, control will quickly turn into domination. In the world of the 1950s and 1960s, when men had control (...truncated)