Preserving Our Legacy: ‘An Important Piece of Feminist History Is at Risk of Being Lost’

For almost 40 years, the Feminism and Legal Theory Project has convened feminist thinkers. “The best ideas come from working together in inclusive, supportive groups,” said Martha Albertson Fineman, the project’s founder.

Martha Albertson Fineman.

Fifty years ago, Title IX fully opened the doors of U.S. law schools to women for the first time. Whereas in 1968 women were less than 5 percent of law students, their numbers grew to 20 percent in 1974 and then 30 percent in 1978. By 1985, women were over 40 percent of all law students. As graduates, many of these women became law professors—and began asking new questions and challenging male-dominated legal institutions and laws.

One of these women was Martha Albertson Fineman, who in the early 1980s launched the Feminism and Legal Theory Project at University of Wisconsin Law School. For decades, the project has brought together scholars and activists from the U.S. and abroad to explore the most pressing contemporary legal issues affecting women. In multiple-day sessions, organized around specific, evolving sets of issues, feminists presented working papers and debated women’s legal rights. Fineman recorded and preserved these groundbreaking conversations, as well as the working papers and other written material prepared for these sessions.

Fineman is now struggling to convince librarians more accustomed to collecting individuals’ or organizations’ papers of the importance of this historic trove of audio, visual and written materials documenting the collective development of feminist concepts, aspirations and theory.

A Feminist Oasis in a Hostile Climate

Fineman entered law school in 1972—the same year Title IX prohibited sex discrimination in law schools. She was one of only 18 women in her class.

“The numbers of admitted women rose sharply over the decade,” said Fineman. “It was an era of aspirations for achieving gender equality.”

When she became a law school professor in 1976, she brought a feminist analysis to the law, which branded her an outsider.

“Feminist legal theorists in the early years often lived a lonely academic life,” said Fineman. “In 1984, I began the Feminism and Legal Theory Project out of desperation.”

The Project became a feminist oasis in a hostile climate, and a lifeline for the growing number of feminist professors across the country.

Feminist legal theorists in the early years often lived a lonely academic life. I began the Feminism and Legal Theory Project out of desperation. … It was fundamental in the development of feminist legal theory as a shared, collective project.

Martha Albertson Fineman
Haesook Kim, Donna Young, Martha Albertson Fineman, Susan Bisom Rapp and Martha McCluskey at the 30th anniversary of the Feminism and Legal Theory Project.

“I almost didn’t get tenure at the University of Wisconsin because of my feminist work,” said Fineman. “This was at a time when feminists—and ‘leftists’ in general—were being excluded from the academy. Even if initially hired, many were denied tenure. There were dozens of women and men whose critical theory work the project supported. We created a safe space for the development of ideas that were being ignored or rejected and attacked in the rest of the academy.”

Fineman moved to Columbia Law School in 1990, then later to Cornell, and is now at Emory Law School. She has taken the Feminism and Legal Theory Project with her every step of the way.

The list of participants in project workshops reads like a who’s who of feminist thinkers and lawyers, including Patricia J. Williams, Eileen Boris, Robin L. West, Claudia Card, Elizabeth M. Schneider, Dorothy Roberts and Victoria Nourse—to name just a few. Participants include historians, political scientists, philosophers, gender scholars and others in disciplines well beyond law—many coming from institutions across the world.

“The project is much more than just a collection of individuals presenting independent papers. It generated and sustained an organic community organized around a shared set of issues that encouraged and supported transformative ideas,” said Fineman. “It was not only important to those individuals and their work, but fundamental in the development of feminist legal theory as a shared, collective project.”

Leading critical race theory scholar Patricia J. Williams, who wrote a foundational essay on slavery, race, gender and rights titled “On Being the Object of Property,” describes Fineman as her “godmother” in the legal profession:

“‘On Being the Object of Property’ was something I had written just at the point at which I’d convinced myself that I was going to leave legal education. It was really in part the product of conversations with the feminist legal theory summer workshops that I wrote down what I was most concerned about. In a very ironic way, that piece went the equivalent of viral in those days and actually started a conversation that brought me back to the legal academy in a very different capacity.”

For close to four decades, Fineman’s Feminism and Legal Theory Project has hosted hundreds of conversations where feminist thinkers from across the United States and world have shaped and explored a wide range of concepts relating to women’s position within law and society. Those conversations delved into the “public nature of private violence,” the legal regulation of motherhood, feminism’s reception in the media, the relevance of economics to feminist thought, the complexities of sexuality, conflicting children’s and parental rights, the origins and implications of dependency and vulnerability, and the extent and nature of social responsibility.

“Feminism teaches us that the best ideas come from working together in inclusive, supportive groups,” said Fineman. “Feminism has grown through consciousness raising and the sharing of experience. The best ideas and the best politics emerge from collective engagements and processes.”

These conversations began by focusing on sex discrimination and exclusion of women and how women could achieve equality of treatment and opportunity under law. The discussion ultimately expanded to question the structures and values of society, advocating for the inclusion and accommodation of women’s gendered lives in all of society’s institutions, including the workplace, politics and economic structures as well as the family.

“This shift from a focus on discrimination to a criticism of social institutions and arrangements, even if they are formally inclusive or gender neutral, represented the theoretical and political passage from a ‘women in law’ model to a feminist model for social reform,” said Fineman. “It demanded institutions be transformed to reflect and incorporate the realities of women’s lives and recognized the positive role law could play in that transformation.”

Out of these conversations emerged the first anthology of feminist legal theory, At the Boundaries of Law, published in 1991. Many more followed, including over a dozen collections, numerous special issues of law reviews and hundreds of individual articles developing an interdisciplinary approach to feminist legal theory.

“In the Feminism and Legal Theory Project, we created what I called ‘uncomfortable conversations’—events where people who shared values, but disagreed about strategies and implementation, could talk,” said Fineman. “If there were areas of disagreement around collective objectives, you could talk about them and work through them hopefully in a constructive manner. That’s how actual progress can be made.”

Who makes the determination about what and who in the past matters?

Martha Albertson Fineman
At convenings of the Feminism and Legal Theory Project, feminists engage in what Fineman calls ‘uncomfortable conversations’ around ideas such as feminist legal theory.

Fineman recorded all of these conversations—a treasure trove of close to four decades of feminist intellectual history. But she is now struggling to find a home for this invaluable archive of the first generation of feminist legal thinkers.

“History has something to teach us. If we don’t collect the history and preserve it, then it can’t teach us,” said Fineman.

The Schlesinger Library at Harvard University is one of the few facilities that currently has the resources to care for the Fineman’s collection, but they told her that although they saw its value, they would not take her archives because they had other priorities. According to Fineman, a representative from Harvard told her: “We do see the real importance of the conferences, the ideas generated, and know it is an important resource for scholars. Unfortunately, it doesn’t align with our current strategic priorities, which involve a heightened focus on lives of women of color. We wouldn’t be able to commit the resources the archives need to its care.”

Others archives, including the Sophia Smith Collection of Women’s History at Smith College, the Sallie Bingham Center for Women’s History and Culture at Duke University and the Pembroke Center Archives at Brown University, indicated they have other priorities (e.g. Smith is prioritizing papers related to sex workers’ rights while Duke “does not focus on the papers of legal scholars”) or they do not have the resources or technical capacity to house the collection.

“Some people are telling me the size of the collection is prohibitive,” said Fineman. “They talk about the necessity to digitize everything initially—but then explain that current technology will need ongoing updating, and this will all add to the cost, ironically decreasing the amount of material that they can actually collect.”

After speaking with people at women’s history archives, Fineman is concerned about how decisions to preserve women’s history are made. “Who makes the determination about what and who in the past matters? How and why they make such decisions ultimately shapes what will constitute women’s or feminist history,” said Fineman. “An important piece of feminist history is at risk of being lost or isolated and sidelined.”

“What is the function of a women’s history archive or a feminist archive? Is it an ‘either-or’ choice to conserve the stories of individual women or to preserve the stories of a social movement, including all the arguments, the disagreements and the dead ends? The real, politically and ethically important question is, in order to reflect feminist reality, shouldn’t it do both?”

An award-winning feminist scholar who was recently elected to the American Academy of Arts and Sciences, Fineman is organizing a series of “uncomfortable conversations” for the fall to consider how we currently understand and preserve feminist history and how we might consider doing things differently. Fineman hopes the conversations will include not only feminist legal scholars and activists, but librarians and historians as well. 

“I would like to have people start thinking about what’s being lost if we think of history in a very narrow and individualistic way. What is the relevance for issues today of the debates and disagreements of the past? What is lost if we don’t see the continuity of historic feminist struggles and insights underlying some of the very questions being raised today.”

On the 50th anniversary of Title IX, as women’s hard-won rights are threatened as never before, preserving the records of feminist struggles for women’s rights takes on added importance. Let’s hope this history is not lost.

Those interested in participating in these conversations or learning more can contact Martha Fineman at [email protected]


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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at [email protected] or follow her on Twitter @CarrieNBaker.