Journal of One's Own - Beginning the Project of Historicizing the Development of Women's Law Journals


A JOURNAL OF ONE'S OWN? BEGINNING
THE PROJECT OF HISTORICIZING THE
DEVELOPMENT OF WOMEN'S LAW
JOURNALS

FELICE BA TLAN*

Since the 1970s, feminism has helped transform the university and
the production of knowledge. Not only have increasing numbers of female
students, professors, and administrators entered universities, they have also
created women's studies programs and courses, which have been slowly
integrated into the various disciplines and university curricula. Further,
feminism has spurred scholars to question traditional ways of knowing and
teaching, academic disciplines, categorizations of knowledge, scholarly
methodologies, and the university's separation from the broader community.]
One component in this production and distribution of new knowledge has
been the establishment of feminist academic journals such as Feminist
Studies (1972), Women's Studies (1972), Signs: A Journal of Women in
Culture and Society (1975), and Frontiers: A Journal of Women's Studies
(1975). These journals created a space for the development of a body of
literature that was oppositional but also sanctioned, institutionalized, and
eventually legitimated.2

Feminism has also entered legal academia and had far-reaching
effects on i t, though these have been s lower to take shape and often have

. Ph.D. Candidate, New York University Department of History, A.B. Smith
College; J.D. Harvard Law School. For their insightful comments, I would like to thank
Elizabeth Schneider, Linda Gordon, Thomas Bender, William E. Nelson, and Richard B.
Bernstein.

' For a discussion of feminism's impact in the university see Marilyn Jacoby
Boxer, When Women Ask the Questions: Creating Women's Studies in America (1998);
Ellen Carol DuBois et al., Feminist Scholarship: Kindling in the Groves of Academe (1985);
Alice Echols, Daring to Be Bad: Radical Feminism in America, 1967-1975 (1989);
Gendered Subiects: The Dynamics of Feminist Teaching (Margo Culley & Catherine
Portuges eds., 1985); Florence Howe, Myths of Coeducation: Selected Essays, 1964-1983
(1984); Paula A. Treichler et al., For Alma Mater: Theory and Practice in Feminist
Scholarship (1985); Women's Studies in Transition: The Pursuit of Interdisciplinarity (Kate
Conway-Turner et al. eds., 1998).

2 See Patrice McDermott, Politics and Scholarship: Feminist Academic Journals

and the Production of Knowledge (1994) for a discussion of the development and role of
feminist academic journals. McDermott's excellent book on this subject essentially stands
alone. Although M cDermott lists a number of women's law journals i n an appendix, she
does not discuss them.



A Journal of One's Own?

faced resistance. Within legal academia, somewhat later than the
development of the major feminist academic journals, women's law journals
were founded-not by established scholars but rather by law students.
Leaving aside the peculiar origins and development of law reviews and law
journals as a whole, there are unique features of the story of women's law
journals-of their origin, evolution, and problematic status--that deserve
study.

I am presently in the process of examining the history of two of the
first women's law journals--the Harvard Women's Law Journal (HWLJ),
established in 1978, and the Berkeley Women's Law Journal (BWLJ),
established in 1985. This excerpt largely focuses on the early years o fthe
HWLJ a nd the questions that I h ave brought t o this project. I engage i n a
discourse analysis while also using an intellectual and social history
perspective. I examine what women's law journal editors wrote about the
roles of the journals, what authors were published, what topics were explored,
the language and paradigms employed, the contours of debates engaged in,
their institutional practices, and their conformity to or departure from
traditional law review conventions. I also try to understand women's law
journals as fluid, reflecting as well as constructing broader intellectual trends
within academia, feminist publication, and the larger women's movement.

Women's law journals might be described as sites of irony. Critical
theorist Donna Haraway writes, "Irony is about contradictions that do not
resolve into 1 arger wholes, even dialectically, about the tension of holding
incompatible things together because both or all are necessary and true."3

Patrice McDermott's remarks about feminist academic journals in general are
equally true of women's law journals: "In claiming acceptance by the
academic establishment while participating in feminism's challenge to it,
feminist academic journals function as one of Haraway's ironic cultural
contradictions. ' 4

In the fall of 1977, through the efforts of a number of women law
students including Sheila Kuehl, Harvard Law School staged Celebration 25
to honor a quarter of a century of women at Harvard. The event was entirely
organized by women students who, without official sponsorship,
commandeered a basement room and, as Kuehl describes, "made it a kind of
women's center.",5 Kuehl understands these actions as "subversive" and
"revolutionary," and writes that the administration sensed that a gathering of
women at the law school would inevitably force a discussion about the

3 Donna H araway, A Manifesto for C yborg: S cience, T echnolog., and Socialist
Feminism in the 1980s, in Simians, Cyborgs and Women: The Reinvention of Nature 149
(1991), available at http://www.stanford.edu/dept/HPS/Haraway/CyborgManifesto.html.

4 McDermott, supra note 2, at 12.

5 Sheila James Kuehl, For the Women's Reach Should Exceed their Grasp, or
How's a Law Journal to be Born?, 20 Harv. Women's L.J. 5, 6 (1997).

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Columbia Journal of Gender and Law

"male-centered nature of American law."6 Celebration 25 was a small
reflection of the broader women's movement of the 1970s. Like some of the
writings in the feminist press, the law students who created Celebration 25
were searching for a usable past, finding and celebrating the women who had
come before them, and attempting to create links between generations. As
part of the celebration, the students published a commemorative volume,
Harvard Women's Law Journal Volume 1, which would become the first
student edited and continuously published women's law journal.' Thus
Harvard, this elite institution, began to finance and house a feminist journal.
This may indicate that the administration, in fact, did not find the presence of
the journal truly threatening.

Although there is no direct evidence that the underground press or
other feminist academic journals directly influenced the women who created
the HWLJ, they were the first group of students who were undergraduates
when the women's liberation movement began influencing universities. Their
very curiosity about the history of women at Harvard Law School and the
questions that they asked indicates its effects. Thus one might understand the
HWLJ as simultaneously born of a social movement but also rooted in the
law school.

The editors' note in volume one, Why a Women's Law Journal,
reads, "When the law first distinguished between men and women,
distributing rights and responsibilities on the basis of sex.., the law took on
a different meaning for women. It is now necessary to examine the origins
and impact of this different treatment and to develop a feminist
jurisprudence." 8 This statement can be read as quite radical. It has the tone of
a feminist manifesto (common in the feminist press of the 1970s), asserting
that "sex" determined the law's impact, response, and opportunities for
participation rather than being impartial and providing equal rights. Even the
term "feminist jurisprudence" gestured to the political mission and alliance of
the journal and situated it within the broader women's movement.
Furthermore, although the term "feminist jurisprudence" was as yet
undefined, and the body of scholarship non-existent, the editors envisioned
the journal as a place to begin such an endeavor. Yet, as the editors' note
indicates, the basis of their enterprise depended on an essentialized notion of

6id.

7 Although the HWLJ was the first student edited and continuously published
women's law journal, it did have some precedents. The Women's Rights Law Reporter out
of Rutgers University episodically published volumes. However, it was directed towards
practitioners. In addition, the Golden Gate Law Review devoted an annual issue to women.
Any larger analysis of the history of women's law journals must take account of these
publications, especially the Women's Rights Law Reporter. Space and time constraints have
prevented me from doing so in this excerpt.

8 Editors' Note, Why a Women's Law Journal?, I Harv. Women's L.J. viii, viii

(1978).

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A Journal of One's Own?

"woman" and "sex"-categories that would be uninterrupted by differences
among women or that could take into account class, race, multiple identities,
and sexuality.

Although the editors' note was radical (as was the creation of the
HWLJ) when historically situated within a particular institutional setting, the
content of the journal, when viewed within the wider feminist movement, is
more problematic. Yet, the mere presence of a feminist space within Harvard
Law School was disruptive to its assimilative model and the dominant liberal
vision of the law as neutral and ungendered. Furthermore, the creation of a
space for women law students t o act as editors and for women authors to
publish articles about w omen and t he law w as a c onscious e ffort to c reate
both a feminist institution and a scholarly feminist public sphere of legal
discourse that did not yet fully exist.

A comparison with a leading conventional law review is suggestive.
My study of the Harvard Law Review from March 1977 to 1982 indicates
that during this period the journal did not publish any article specifically
about women and the law nor any article by a woman author, no matter what
the topic. Volume one of the HWLJ lists a staff (including editors) of forty-
three women and one man. In contrast, the Harvard Law Review, in 1978,
lists approximately eight women out of a staff of sixty-seven. In 1980, there
were ten women on a staff of eighty-four. 9 These numbers provide ample
testimony that the HWLJ represented a women's space providing
opportunities to women law students and authors that the law review did not
offer.

Yet if the HWLJ was radical from one perspective, it was not radical
from another. The journal was produced from the site of an elite law school
and, like other law journals, it was insulated within the university and not a
larger community enterprise. Directed and managed by a group of Harvard
law students, it served to create and maintain an elite circle of inclusion and a
wider circle of exclusion. In a number of other ways, the HWLJ also
replicated rather than challenged the practice of other law reviews.

Many historians and observers have remarked that feminist
organizations in the 1970s saw hierarchies as a central feature of "patriarchal
culture" and instead adopted egalitarian organizational structures.' ° This was
not entirely the case with the HWLJ. Although the HWLJ was open to any

9 I have calculated numbers of men and women by reviewing the staff rosters
published in the journals. When making a determination of who is male or female, I have
used names as proxies for a person's sex. Where a name might be that of a man or woman's
such as "Chris," I have assumed that to be a woman's name. In 1981, an editor of the
Harvard Law Review wrote that out of eighty-nine editors on the Review, eleven were
women and only one was a member of a minority group. At the time, the student body was
twenty-eight percent female. See Robert J. Lack, Challenge to the White, Male Legal
Establishment, N.Y. Times, Mar. 9, 1981, at A22.

10 See McDermott, supra note 2, at 27; Rosalyn Baxendall & Linda Gordon, Dear

Sisters: Dispatches from the Women's Liberation Movement, 14-15 (2000).

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Harvard law student, the editors and staff were divided, hierarchically
paralleling and recreating the structures of other law reviews. The cover of
the HWLJ resembled that of other law reviews, as did the page layout and
citation form. Such visual clues indicate the editors' desire for acceptance as
a "serious" law review and their willingness to play by at least some of the
rules of the genre. In its adoption of these norms, the editors perhaps created
the journal according to an equality paradigm-women could produce a law
journal about women that would compete with traditional law reviews.

One notable exception existed to its standard stylistic and visual
presentation. Most law reviews simply drop a note next to the author's name,
providing a terse statement of the author's institutional affiliation and
educational background. Instead the HWLJ provided a more complete
biography along with the author's own statement regarding her commitment
to feminism and work within the women's movement. Although the editors
did not remark upon this process, it discursively situated the author as a

political person--an advocate and not a supposedly impartial observer-and
tied the author's professional commitments to her personal life. By the
second volume, however, this practice was abandoned without comment.

From the first volume, however, the journal indicated its desire to
publish articles from other disciplines. Some feminist scholars consider inter-
disciplinarity crucial to a feminist methodology, for, unhindered by
disciplinary boundaries, it can allow for a fuller understanding of how gender
functions. The major feminist journals, such as Signs and Feminist Studies,
were always multidisciplinary." The lead article in volume one of the H WLJ
was Reflections on Women and the Legal Profession: A Sociological
Perspective, authored by Rosabeth Moss Kanter, a Yale sociology professor.
Yet the article, a study of women lawyers' career advancements in elite law
firms, is troublesome. The author incorporated the assumption that women
should want to join, work, and advance up the corporate ladder in such law
firms, and that career success, and women attorneys' progress in general,
should be defined as such. The article failed to discuss the legal substance of
the work that such women would be performing and how it might conflict
with feminist goals. It further adopted unstated assumptions that women
lawyers were white, straight, and privileged. And perhaps it was a fitting
piece for the HWLJ's commemorative issue, in that it spoke to and about the
small number of women attending elite law schools who had the opportunity
to join white shoe law firms.

Indeed, article after article in the journal's early volumes
demonstrated an embrace of the market, and produced a generic and abstract
woman lacking race, class, or sexual preference. The abstract, rights-bearing,
contracting liberal man of legal discourse was simply replaced by the
abstract, rights-bearing liberal woman. The absence of any class analysis or

1 See, e.g., DuBois et al., supra note 1; Christine A. Littleton, In Search of a
Feminist Jurisprudence, 10 Harv. Women's L.J. 1, 4 (1987).

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critique of capitalism is especially surprising, given that feminist scholarship
from other disciplines was heavily influenced by what has been labeled
''socialist feminism," which analyzed how modes of production and class
interacted with gender.'2

Part of these absences may have been caused by the confluence of a
number of phenomena. Many of the articles published in the journal's early
years were written by recent law school graduates or more experienced
practicing attorneys. Both were trained to make arguments in a particular way
for specific purposes using traditional legal discourse. Within these
constraints and without a developed feminist legal theory, such authors may
not have possessed the tools for offering a more sustained feminist critique.

In 1985, a number of women law students at Boalt Hall School of
Law created the BWLJ. The editors' note in the first volume read, in part: "At
the outset we formulated our priorities: to give voice to the complex and
varying p erspectives r eflecting t he legal c oncerns o f all w omen, e specially
the women of color, lesbians, disabled women and poor women whose voices
have been severely underrepresented in existing literature.' 3 Perhaps this
statement reflected the editors' own reading of the absence of such articles in
the HWLJ. Furthermore, like the HWLJ's call for a feminist jurisprudence
before it existed, the BWLJ was attempting to create a space for an
alternative legal scholarship. In volume two, the editors wrote that they were
actively contacting and supporting authors with hopes that those seeds would
later bear fruit. In subsequent volumes, the new editorial boards reiterated
their commitment and also acknowledged their failure. These statements
highlight that the BWLJ was not only a space to publish articles that were not
being published elsewhere but that it actively sought out and nurtured such
scholarship.

In volume three, the editors issued a manifesto-like statement on the
purpose of feminist legal scholarship and the journal. They wrote that "the
battle" over feminist scholarship was not over and cited the recent decision of
Harvard Law School to deny law professor Clare Dalton tenure. They noted
further that they were having difficulty attracting articles, especially those by
and about under-represented women. Finally they wrote that the purpose of
the BWLJ was to provide a site for alternative scholarship, to empower law
students who confronted a homogeneous faculty, and to provide tools to
practitioners who address "the realities of women's lives. 1 4 In subsequent
volumes, the editors repeatedly criticized law schools, writing that the tenure
system prevented authors from publishing in women's law journals and
condemning those who evaluated scholarship through "the myopic lenses of

12 A notable exception to this trend was Janet Rifkin's Toward a Theory of Law
and Patriarchy, 3 Harv. Women's L.J. 83 (1980). This article became one of the foundational
building blocks of feminist jurisprudence.

13 Editors' Note, I Berkeley Women's L.J. n.p. (1985).

14 Editors' Note, 3 Berkeley Women's L.J. n.p. (1987-88).

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hierarchy; a hierarchy that rewards those who ignore the existence of sexism,
racism, classism and homophobia."' 5 The BWLJ's editors thus envisioned the
problems that women faced in the law school to be part of a continuum with
those of society, which reflected and constructed one another. In doing so, the
editors were blatantly proscriptive, imagining what feminist legal scholarship
could look like through the collective efforts of feminists in the academy and
in the community.

Consistently, the BWLJ's editors' voices were much more present
than the voices of the HWLJ's editors. For example, the BWLJ's editors
repeatedly attacked the institutional policies of I aw schools regarding both
tenure and student admissions and connected the struggles of women across
various institutional sites. There is an irony that the BWLJ attacked the
Dalton tenure decision, whereas HWLJ chose not to, even though the
decision had direct impact on these students. Indeed the BWLJ did not
hesitate to be overtly political and saw its mission as one of advocacy rather
than adopting the supposedly apolitical stance of other law reviews.16

The BWLJ also sought to blend scholarship, community activism,
and political advocacy. For instance, in 1 989 it published an article by an
author who in 1969 had litigated early abortion cases. The article began with
an editors' note stating that the Supreme Court had recently heard oral
arguments in Webster v. Reproductive Health Services, and that the outcome
of the case remained uncertain.' 7 The editors wrote, "It is clear, however that
women need to fight to retain our right to abortion .... A look back into the
history of those early battles can teach us about how we should fight for
abortion rights today." 8 The article examined how women attorneys,
established and grassroots women's organizations, and individual women
together brought and supported various lawsuits regarding abortion rights.
Thus, the article argued that abortion rights cases were and must again
become part of a larger social movement and not be limited to the domain of

15 Editors' Note, 4 Berkeley Women's L.J. n.p. (1988-89).

16 The most overt political act that the HWLJ undertook was in 1993 when the

editors began the joumal with a seventy-eight page l ist, which they compiled, of African
American female law professors and their credentials. The editors wrote that Harvard Law
School had consistently failed to hire an African American woman professor on the grounds
that none could be found. The list was intended to demonstrate the large number of African
American women law professors available. See Women of Color in Legal Academia: A
Biographical and Bibliographical Guide, 16 Harv. Women's L.J. 1 (1993). Although beyond
the scope of this excerpt, without doubt the boldness of the BWLJ compared to the HWLJ is
related to the different atmospheres and histories of student radicalism on the two campuses.

17 See Reprod. Health Serv. v. Webster, 492 U.S. 490, 500 (1989). Webster
involved a Missouri law that sought to restrict the use of public funds, employees, and
facilities to counsel women about abortion. The law also defined conception as the beginning
of human life.

18 Nancy Steams, Roe v. Wade: Our Struggle Continues, 4 Berkeley Women's L.J.

1, 2 (1988-89).

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A Journal of One's Own?

courts and legal professionals. The article also served to connect the early
women's movement with feminist activism in the late 1980s, again
highlighting the importance of creating a usable past. Following the article
was a list of pro-choice organizations with their addresses and telephone
numbers. Publishing this list transcended the role of traditional law reviews
and situated the BWLJ as a publication that embraced advocacy and
community organizing.

At least part of BWLJ's willingness and perhaps ability to be so
outspoken may have, in part, been due to the institutional support that it
garnered. The group of women who were contemplating forming the journal
appear to have approached professor, later dean, Herma Hill Kay who
became its long-term faculty advisor. Kay seems to have played a
tremendously supportive role, which included contacting other law school
deans to assure them that the BWLJ was a respectable journal in which
faculty should be comfortable publishing. Kay also wrote the lead article for
the premiere volume and many articles published in the journal
acknowledged her support. In addition to an active faculty advisor, the
journal, unlike most law journals but similar to other academic journals,
formed a National Advisory Board. On the Board were eight women law
professors, ten women attorneys including lawyers from the Lesbian Rights
Project, the Legal Aid Society, the Asian American Legal Defense and
Education Fund, and the Western Center on Law and Policy, one woman
judge, a professor of sociology, a California State Senator, and the director of
the Indian Resources Department at New Mexico State University.

Yet even with BWLJ's innovative steps, it, along with the HWLJ,
had trouble attracting academics to publish in the journals. In the 1980s, a
group of relatively young women feminist lawyers entered academia and
began to develop the main tenets of feminist legal theory. Generally, although
not always, they published at first in the more established journals and not in
women's law journals. Within academic legal circles, there was a sense that
publishing in a women's law journal was not a "real" publication credential.' 9

Women legal academics who already had made the bold step to write about
women may have sought more traditional places of publication, reasoning
that they could later publish in a women's law journal (and indeed many did).
For the most part, articles on feminist jurisprudence began to appear in non-
Ivy League law reviews in the early 1980s. °

19 Herna Hill Kay, Berkeley Women's Law Journal: Ten Years of Giving Voice to
Underrepresented Women and Their Concerns, 10 Berkeley Women's L.J. 1, 5 (1995).

20 See, e.g., Mary Joe Frug, Securing Job Equality for Women: Labor Market
Hostility to Working Mothers, 59 Buff. L. Rev. 55 (1979); Mary Joe Frug, A Symposium of
Critical Legal Study: Re-reading Contracts: A Feminist Analysis of a Contracts Casebook,
34 Am. U. L. Rev. 1065 (1985); Frances Olsen, Statutory Rape: A Feminist Critique of
Rights Analysis, 63 Tex. L. Rev. 387 (1984); Ann Scales, Towards a Feminist Jurisprudence,
56 Ind. L.J. 375 (1981).

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The glass, however, might be imagined to be half full or half empty.
In the absence of articles by legal academics, the journals served as a bridge
between legal practitioners and the academic community. Thus the HWLJ
and t he B WLJ published articles written b y attorneys practicing i n diverse
settings, legal instructors, activists from various organizations, recent law
school graduates, and students. In this motley mix of authors, women's law
journals resembled other nascent feminist publications such as Feminist
Studies and Frontiers. Articles about pension plan discrimination, athletics
and Title IX, and causes of action for employment discrimination may appear
doctrinal and somewhat traditional to the reader looking for an engagement
with critical theory and the destruction of the binaries that the law imposes.
These articles, however, with their collection of cases, intensive research, and
often creative and innovative lawyering strategies, may have been important
to attorneys who litigated such cases. Moreover, we can understand them as
constituting the actual praxis that some feminist scholars discuss in more
general ways.2 Furthermore, such articles may have served to create a
communications network for publicizing legal cases and information from a
wide array of sources that otherwise may have received scant attention. As
such, these journals might be understood as being part of a feminist public
sphere. Yet I use the phrase hesitantly for indeed a crucial question is what do
we mean by feminist and what constitutes the public.

By 1995, the HWLJ and the BWLJ had matured, become fully
institutionalized, won funding by the schools in which they were housed, and
had developed their own networks and connections, as those who once
worked on the journals became professors, practitioners, and authors who
published in the journals. Perhaps these journals, as well as the more than a
dozen other women's law journals that were established in the last decade,
began to reproduce their own hierarchies. I conclude by asking a number of
questions: Does the proliferation of women's law journals indicate that they
have simply become part of a national but insulated discourse that poses little
threat to either the law schools that house them or the larger legal system?
Are women's law journals still or were they ever a literature of opposition?
Finally, what role can these journals play in nurturing a revived women's
movement while simultaneously de-essentializing our very understanding of
"woman"?

21 Feminist theorist Patti Lather defines praxis as "theory relevant to the world and

nurtured by actions in it." Patti Lather, Gettine Smart: Feminist Research and Pedagog
With/in the Postmodern 1 -12 (1991).

438 [Vol. 12:3