Martha Albertson Fineman

Emory University | EU · School of Law

Universal vulnerability provides an alternative to a rights-based and social contract model for state responsibility by contextualizing the individual and revealing the ways in which we are all inherently and dynamically dependent on society and others throughout the life-course. Beginning from the body as an ontological concept, vulnerability theo...

I want to thank the Texas A&M Law Review for including my work in this special Issue and express my appreciation to Professor Dinner for her thoughtful comments concerning the evolution of my scholarship. Professor Dinner raises the question of whether that earlier work is relevant to the Dobbs v. Jackson Women’s Health Organization opinion, specif...

Corporate law has traditionally assumed that men organize business, men profit from it, and men bring cases in front of male judges when disputes arise. It overlooks or forgets that women are dealmakers, shareholders, stakeholders, and businesspeople too. This lack of inclusivity in corporate law has profound effects on all of society, not only on...

This chapter offers a clear roadmap for the application of vulnerability theory. It engages with the ontology of the body in order to highlight the universality of vulnerability. This embodied vulnerability and the inevitable social dependency that goes alongside it provide a clear and unambiguous challenge to liberal understandings of legal subjec...

Defining constitutional injury - beyond human rights, vulnerability theory, the responsive state, and the harm of profound social neglect.

INDIVIDUAL JUSTICE I was so pleased and honored to be asked to give the inaugural lecture for Leeds Institute for Law and Social Justice I want to thank Michael Thomson and Julie Wallbank for inviting me and Michael in particular for being such a generous host When I received this invitation I had a vague intuition that the vulnerability project fi...

The societal frame of the “economically disadvantaged” is rooted in a distinction between a conceptual status of equality and the actuality of discrimination and disadvantage. This paradigm provides the governing logic for both criticism and justification of the status quo. This Article questions whether and to what extent this equality/antidiscrim...

This Article briefly considers the origins of the term social justice and its evolution beside our understandings of human rights and liberalism, which are two other significant justice categories. After this reflection on the contemporary meaning of social justice, I suggest that vulnerability theory, which seeks to replace the rational man of lib...

Understanding universal vulnerability as inherent in human beings raises questions about the use of differentiating and stigmatizing terms such as vulnerable populations, by which individuals are grouped together based on perceived dissimilarity, deviance, or victimhood. Understanding human vulnerability also calls into question concepts, such as i...

State neglect of the needs of those individuals living in poverty or suffering under social, economic, and material disadvantage is not seen as requiring legal or political remedy. Quite the contrary: state inaction is typically viewed as the appropriate manifestation of state restraint in the face of individual liberty or autonomy rights that cond...

The abstract legal subject of liberal Western democracies fails to reflect the fundamental reality of the human condition, which is vulnerability. While it is universal and constant, vulnerability is manifested differently in individuals, often resulting in significant differences in position and circumstance. In spite of such differences, politica...

This chapter considers home schooling in the context of the larger goals of education and considers the multiple and compelling, but often conflicting interests—of parents, children, and society—that must be part of any educational policy. It focuses on home schooling in particular, arguing that it is the most radical form of private education and...

Taking a cross-cultural perspective, this book explores how privatization and globalization impact contemporary feminist and social justice approaches to public responsibility. Feminist legal theorists have long problematized divisions between the private and the political, an issue with growing importance in a time when the welfare state is under...

Sociolegal scholars maintain that the role of family law is to promote the ‘institutionalization’ of the family. Institutionalization involves the creation of normative expectations, the coordination of behavior, and the regularization of roles associated with family formation, conduct, and dissolution. Two long-term developments currently are resh...

Martha Albertson Fineman’s earlier work developed a theory of inevitable and derivative dependencies as a way of problematizing the core assumptions underlying the ‘autonomous’ subject of liberal law and politics in the context of US equality discourse. Her ‘vulnerability thesis’ represents the evolution of that earlier work and situates human vuln...

Two long-term developments currently reshaping families and transforming family law: greater autonomy for women and growing economic inequality in Western societies. These changes have eroded the formerly near-universal acceptance of marriage as the only appropriate site for child-rearing. Growing inequality has created a menu of options in family...

Feminist legal theorists can legitimately complain that most mainstream work fails to take into account institutions of intimacy, such as the family. Discussions that focus on the market typically treat the family as separate, governed by an independent set of expectations and rules. When theoretical focus is turned to the nature of actions of the...

The civil societarians claim the family as their domain, its salvation as their mission. The family is a foundational concept – the 'cradle of citizenship' – which teaches 'standards of personal conduct that cannot be enforced by law, but which are indispensible for civil society. Problems with the family are seen as problems for democracy, justify...

Truth-seeking mechanisms, international criminal law developments, and other forms of transitional justice have become ubiquitous in societies emerging from long years of conflict, instability and oppression and moving into a post-conflict, more peaceful era. In practice, both top-down and bottom-up approaches to transitional justice are being form...

This groundbreaking collection brings together leading contemporary legal theory scholars creating an interdisciplinary dialogue which explores, at times contentiously, convergences and departures among a variety of feminist and queer political projects. The richness and vitality of feminist and queer theories, as well as their relevance to matters...

Combining feminist legal theory with international human rights concepts, this book examines the presence, participation and treatment of children in a variety of contexts. Specifically, through comparing legal developments in the US with legal developments in countries where the views that children are separate from their families and potentially...

While masculinities theory has had much to say on relationships of subordination, few feminist legal scholars have examined the implications of masculinities theory for feminist legal theory. This volume investigates the ways in which emerging masculinities theory in law could inform feminist legal theory in particular and law in general. As many o...

Martha Albertson Fineman's earlier work developed a theory of inevitable and derivative dependencies as a way of problematizing the core assumptions underlying the 'autonomous' subject of liberal law and politics in the context of US equality discourse. Her 'vulnerability thesis' represents the evolution of that earlier work and situates human vuln...

This article compares the legal culture of equality in the United States with the legal cultures of other constitutional democracies. It looks at two manifestations of equality: equality in its narrow sense – as a nondiscrimination mandate – and equality in its broader, substantive sense – as establishing a positive right to access the social goods...

The vulnerability of our embodied beings and the messy dependency that often comes in the wake of physical or psychological needs cannot be ignored throughout any individual life and must be central to theories about what constitutes a just and responsive state. The concept of vulnerability reflects the fact that we all are born, live, and die with...

Bringing together an international range of academics, Gender, Sexualities and Law provides a comprehensive interrogation of the range of contemporary issues – both topical and controversial – raised by the gendered character of law, legal discourse and institutions. The gendering of law, persons and the legal profession, along with the gender bias...

The lesson from the United States is that egalitarian law reform alone is inadequate to achieve gender equality, be it at home or in the workplace. Formal equality may be useful in defining some relations between adults, but family dynamics, as well as the realisation that state and market institutions must be responsive to human dependency and vul...

Since there is also no U.S. constitutional guarantee to basic social goods, such as housing, education, or health care, the anti-discrimination, sameness-of-treatment approach to equality prevalent in the United States is particularly problematic. The discourse of human rights that supports claims to such goods in European and other countries does...

This chapter is in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, M.A. Fineman, J. E. Jackson, and A. P. Romero, Eds. (Ashgate 2009). It addresses the construction of the concept of the sexual family both outside of and inside law. The sexual family is the traditional or nuclear family, a unit with a heterosexual...

This is a chapter from What Is Right For Children: The Competing Paradigms of Religion and Human Rights, M.A. Fineman and K. Worthington Eds. (Ashgate 2009). It explores the implications of the fact that schools have become one of the battlegrounds in American culture wars and parental rights are entangled with religious freedom. Children’s indepen...

This chapter, which will be included in Transcending the Boundaries of Law, M.A. Fineman, Ed (Routledge 2010) brings a historical and analytic gaze on the concept of equality in the US legal system. Beginning with the establishment of Portia Law School for women and court decisions like Muller v. Oregon, I discuss the tension between seeking equali...

This essay is the introduction to Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, M.A. Fineman, J. E. Jackson, and A. P. Romero, Eds. (Ashgate 2009). The book explores the tensions among feminist and queer theorists. Wendy Brown (UC-Berkeley) sates that it is “possibly the most useful theory anthology of the decad...

This essay will be a chapter in Social Citizenship and Gender, edited by Joanna Grossman and Linda McClain (Cambridge University Press 2009). It addresses the anomaly that after four decades of using the ideal of equality to confront gender-skewed distributions of power we, still we find a politics of gender subordination and domination embedded in...

This article traces the religious roots of American family law and the way that those roots still impact possibilities for and reaction to reform of law and the ways in which they shape contemporary politics in the United States. Traditional or fundamentalist religious conceptions of the family are incompatible with the three significant 'revolutio...

Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations is a groundbreaking collection that brings together leading scholars in contemporary legal theory. The volume explores, at times contentiously, convergences and departures among a variety of feminist and queer political projects. These explorations - foregrounded by l...

Combining feminist legal theory with international human rights concepts, this book examines the presence, participation and treatment of children in a variety of contexts. Specifically, through comparing legal developments in the US with legal developments in countries where the views that children are separate from their families and potentially...

This essay develops the concept of vulnerability in order to argue for a more responsive state and a more egalitarian society. Vulnerability is and should be understood to be universal and constant, inherent in the human condition. The vulnerability approach is an alternative to traditional equal protection analysis; it represents a post-identity i...

Feminism is not anchored in any one discipline. IT presents a theory of gender and challenges the assertions and assumptions of gender-neutrality and objectivity in received disciplinary knowledge. Because gender is theoretically relevant to almost all human endeavors, it is also relevant to almost all disciplines.This paper discusses some of the d...

From the ground breaking legal decisions on gay marriage to the promotion of marriage for low-income families, the “sacred institution” of marriage has turned into a public battleground. Who should be allowed to marry and is marriage a public or private act? Should marriage be abandoned completely? Or should marriage be redefined as a civil institu...

Other nations have grappled with the question of what it means to grant equality under the law. Looking at their struggles with equality demonstrates that the very word may be modified, and therefore understood, in many different ways. This paper looks at some of the various ways in which equality can be implemented through the lens of internationa...

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The possibility of domestic violence is an incredibly important, but often overlooked matter when dealing with divorce, custody, and visitation. Separation is often the most dangerous time for a woman, the very attempt to leave inciting an abusive partner. Abusive husbands can threaten to seek custody as a ploy in post-separation negotiations. Judg...

America has a historic and highly romanticized affair with the ideal of the private and the individual as appropriate units of focus in determining social good. If a child is part of that private landscape, it is deemed a private matter. Children are like any other item of consumption, a matter of individual preference and individual responsibility...

The nuclear family is the quintessential private institution. Privacy is essential to the formation of family, allowing for autonomy in family units while protecting families from state intervention and regulation of intimacy. State intervention into the nuclear family is the exception. Family privacy conceals power imbalances within the familial s...

One complaint about mainstream treatments of law often made by feminist legal theorists is that much theoretical work fails to take into account institutions of intimacy such as the family. Discussions focusing on the market, for example, typically treat the family as separate, governed by an independent set of expectations and rules. The family ma...

The growing presence of women in the legal profession and the prominence of law as a site of feminist social change make the complex interrelationship between the media, feminism, and the law a critical concern across disciplines. Drawing on legal theory, cultural studies, journalism, political science, sociology, and communications, this book pres...

Welfare reform is a definitive moment in this history of America. We are making determinations about our social welfare system with significant and widespread implications for the weakest and most defenseless Americans. It is widely understood that the social safety net is being torn apart by the rhetoric of budget necessity and professed American...

Despite widespread changes to family structure and the increase of women in the workforce, the vision of a traditional family consisting of a male breadwinner formally married to a female homemaker who cares for the couple’s biological children continues to pervade contemporary political and legal discourse and drive policy decisions. Such a vision...

This article evaluates the consequences for Mothers of the de-gendering of family law, particularly in the context of child custody. It traces the history of child custody in family law from the early Anglo-American rules that extended paternal property rights to the development of the best interests of the child standard with the supplemental “ten...

How do "no-fault," "gender-neutral" divorce reforms actually harm the lives of women and children they are designed to protect? Focusing on the language and symbols of reform, Martha Fineman argues that by advocating measures based on equality of treatment rather than of outcome, liberal feminists disregarded the socioeconomic factors that simultan...

This essay concerns the complex, difficult, and perhaps impossible goal of introducing feminist theory into legal discourse. It analyzes existing and emerging themes that dominate contemporary feminist legal discourse that are of concern because of their limited usefulness in developing a theory of women’s experience within law and legal institutio...

The way that we as a society perceive marriage and the relationship between husband and wife profoundly affects the way that we select, develop, and apply rules governing property distribution at divorce. A consensus about what constitutes equity and justice is not easily attained. Legal actors must develop and apply rules in a legal system where t...

This Article examines the changing relationship between legal and non-legal decisionmakers in custody cases. Although custody determinations historically were viewed as legal events accomplished by legal decisionmakers through legal procedures, the recent trend toward joint custody and mandatory mediation represents an appropriation by the helping...

In the age of no-fault, readily accessible divorce systems throughout the United States, children have received considerable attention as innocent victims in need of protection. Such a perspective, in tandem with the now widely accepted equality model in family law, has led to changes in the custody decision making process including the appointment...