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

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." 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 essay 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.