Faculty Scholarship

Document Type

Article

Publication Date

September 2010

Abstract

There has been extensive jurisprudential literature positing that the structure, values and processes of the American legal and educational system, focusing heavily on adversarial battle among parties in court, and competition in law school, are fundamentally "male-centered." This "male-female" construct suggests that there is an essential dichotomy between the two genders with respect to resolving disputes that is reflected in the legal system, and that this male-female dichotomy is harmful to all participants and perhaps to justice itself. This article expands upon this literature by arguing that many of the dysfunctional characteristics of the American legal system labeled "male" in the traditional feminist critiques are, from a comparative and historical perspective, not essentially male at all, but simply deviant from the jurisprudential approach of the great bulk of the world's legal systems. Needless to say, the vast majority of the world’s legal systems are dominated by men, and presumably incorporate the value characteristics of those men. Nevertheless, the adversarial approach to resolving disputes is not the method for resolving disputes adopted by the great majority of the world’s men. Thus, the most that could be said is that the U.S. system reflects the approach of men in the United States towards dispute resolution. If essentialist differences between men and women are not the source of the particular American approach to dispute resolution, then the answer must reside in those other historical, economic, political and social factors.

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ExpressO

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