Vulnerability as a Category of Historical Analysis: Initial Thoughts in Tribute to Martha Albertson Fineman

This Essay uses an illustrative example from my own scholarship to demonstrate the capacity for vulnerability theory to enrich legal history. It analyzes the legal construction and obfuscation of vulnerability in the U.S. ¿welfare regime¿: the public as well as private arrangements that order social provisioning. As a short Essay meant to provoke rather than to answer questions, the piece is necessarily cursory in its treatment of historical causation, controversies, and patterns. First, I outline the relationship between gender and vulnerability in the liberal welfare regime, premised on concepts of feminine vulnerability and masculine independence.

Second, I discuss the ways in which the neoliberal welfare regime assumes invulnerability: it valorizes sex neutrality, while reinforcing private responsibility for dependency. Third, I use vulnerability theory to help illuminate a historical path not taken: the transformation of the welfare regime according to the model of the universal, interdependent caregiver rather than the universal, autonomous breadwinner. Throughout this brief exposition, I endeavor to explain how Fineman¿s theoretical insights inform my own methodology and analysis as a legal historian.