Abstract
Feminist legal scholarship has given insufficient attention to key analytic approaches that figure centrally in other areas of legal scholarship. This failure of feminist scholarship to make use of methods that have enriched other scholars’ work has hurt the journals that specialize in publishing feminist works. As participants at this conference have complained, feminist law journals are generally marginalized and ignored by all but a small coterie of scholars. Yet, in providing an outlet for work on topics of special interest to women-work that other journals cannot or will not accommodate-feminist journals play a role similar to that of other journals devoted to specialized subjects. Because the issues that feminist legal scholars address are of central concern to society as a whole and affect legal developments in many areas, feminist law journals have the potential to survive, thrive, and command the respect and attention of academics from a broad range of fields. The fate of feminist publications is not inevitable. This essay argues that there is nothing wrong with feminist law journals that reforming feminist legal scholarship will not cure.
There are three methodological approaches to which feminist legal scholars g ive short shrift and which ought to figure more prominently in their work. These are economic analysis, empirical social science, and evolutionary theory, including evolutionary psychology. The first, economic analysis, is not easy to define because it is not monolithic. In general, economics attempts to identify the costs and benefits of rules for social actors and to do so systematically and quantitatively. This method assumes that social actors, including persons and organizations, seek to satisfy preferences in their interactions with one another on the market and in other institutional settings. The second method, social scientific empiricism, recognizes that assertions about the existence and extent of social problems, the identity of their causes, or the desirability of potential cures, cannot be established a priori as a matter of theory only. This method is committed to investigating social conditions and evaluating proposed policies by collecting factual evidence and analyzing data using rigorous, statistically sound procedures. The final approach that feminist legal scholars unduly ignore, or even denigrate, is evolutionary analysis. Evolutionary theory seeks to offer a scientifically grounded account of human psychology and behavior as an outgrowth of competition over time among individuals and groups for scarce resources. The rubric covers methods ranging from conventional Darwinian explanations to efforts to understand complex group interactions using game-theoretic models developed by economists and social scientists.