The Critical Tax Project, Feminist Theory, and Rewriting Judicial Opinions

Introduction to Symposium on Feminist Judgments: Rewritten Tax Opinions

The Critical Tax Project, Feminist Theory, and Rewriting Judicial Opinions

In this essay, the authors discuss the intellectual foundations for their co-edited book, Feminist Judgments: Rewritten Tax Opinions (2017), the first in a series of subject-matter specific volumes published in the U.S. Feminist Judgments Series by Cambridge University Press. Using only the facts and precedents in existence at the time of the original opinion, the contributors to this and other feminist judgments projects around the globe seek to show how application of feminist perspectives could impact, or even change, the holding or reasoning of judicial decisions. Underlying Feminist Judgments: Rewritten Tax Opinions is the belief that the study of taxation is inextricably linked to the study of inequality (and vice versa).Critical tax scholars often encounter resistance from those who contend that tax statutes are neutral. Yet by centering the perspective of historically disempowered groups, one exposes how the tax laws contribute to and play a role in maintaining racial and gender inequality, among other types of injustice. Rewriting tax decisions from a feminist perspective is an exercise in showing — not telling — how the tax law can be harnessed in furtherance of greater equality for all people.The authors proceed to introduce the essays in a symposium issue of the Pittsburgh Tax Review devoted to Feminist Judgments: Rewritten Tax Opinions. Eleven different individuals — including recent law school graduates, practicing attorneys, long-time teachers of U.S. tax law, and colleagues who study tax, but primarily systems other than that of the United States — contributed essays. Their topics include feminist statutory interpretation generally and reviews of individual rewritten opinions that address topics including tax benefits for married individuals; the deductibility of costs associated with gender confirmation surgery; and the masculine quality of certain business deductions. Colleagues from Sweden and Australia consider persistent gender bias and the role tax law could and should play in its elimination. Other contributors find inspiration in the book for their own teaching, learning or scholarship, offering suggestions for using the feminist judgments in the classroom, or to inspire statutory reform that rewards unpaid care and service work

Teaching with Feminist Judgments: A Global Conversation

This conversational-style essay is an exchange among fourteen professors-representing thirteen universities across five countries-with experience teaching with feminist judgments. Feminist judgments are \u27shadow\u27 court decisions rewritten from a feminist perspective, using only the precedent in effect and the facts known at the time of the original decision. Scholars in Canada, England, the U.S., Australia, New Zealand, Scotland, Ireland, India, and Mexico have published (or are currently producing) written collections of feminist judgments that demonstrate how feminist perspectives could have changed the legal reasoning or outcome (or both) in important legal cases. This essay begins to explore the vast pedagogical potential of feminist judgments. The contributors to this conversation describe how they use feminist judgments in the classroom; how students have responded to the judgments; how the professors achieve specific learning objectives through teaching with feminist judgments; and how working with feminist judgments-whether studying them, writing them, or both-can help students excavate the multiple social, political, economic, and even personal factors that influence the development of legal rules, structures, and institutions. The primary takeaway of the essay is that feminist judgments are a uniquely enriching pedagogical tool that can broaden the learning experience. Feminist judgments invite future lawyers, and indeed any reader, to re-imagine what the law is, what the law can be, and how to make the law more responsive to the needs of all people

Teaching with Feminist Judgments: A Global Conversation

This conversational-style essay is an exchange among fourteen professors—representing thirteen universities across five countries—with experience teaching with feminist judgments. Feminist judgments are ‘shadow’ court decisions rewritten from a feminist perspective, using only the precedent in effect and the facts known at the time of the original decision. Scholars in Canada, England, the U.S., Australia, New Zealand, Scotland, Ireland, India, and Mexico have published (or are currently producing) written collections of feminist judgments that demonstrate how feminist perspectives could have changed the legal reasoning or outcome (or both) in important legal cases. This essay begins to explore the vast pedagogical potential of feminist judgments. The contributors to this conversation describe how they use feminist judgments in the classroom; how students have responded to the judgments; how the professors achieve specific learning objectives through teaching with feminist judgments; and how working with feminist judgments—whether studying them, writing them, or both—can help students excavate the multiple social, political, economic, and even personal factors that influence the development of legal rules, structures, and institutions. The primary takeaway of the essay is that feminist judgments are a uniquely enriching pedagogical tool that can broaden the learning experience. Feminist judgments invite future lawyers, and indeed any reader, to re-imagine what the law is, what the law can be, and how to make the law more responsive to the needs of all people

Rewriting Judicial Opinions and the Feminist Scholarly Project

In 1995, the authors of a law review article examining “feminist judging” focused on the existing social science data concerning women judges and compared the voting records and opinions of the only female Justices on the U.S. Supreme Court: Ruth Bader Ginsburg and Sandra Day O\u27Connor. Based on this review, the authors concluded that appointing more women as judges would make little difference to judicial outcomes or processes. The authors accused those who advocated for more women on the bench of having a hidden feminist agenda and bluntly concluded that “[b]y any measure, feminist judges fit very uneasily in most conceptions of the proper role of the judicial system.” More than twenty years later, scholars have a better understanding of what constitutes “feminist judging”; moving beyond the gender of those involved in making judgments, feminist judging is understood to derive from the asking of feminist questions and the application of feminist theories and methods. Current scholars also are taking a closer look at the role of feminist judicial perspectives throughout the judicial system. Through a series of “feminist judgments” projects around the globe, scholars are testing the proposition that feminist judging “fits” within the judicial role, no matter the gender of the judge. In the form of rewritten opinions based on the facts and precedent in effect at the time of the original decision, these projects demonstrate that judges who apply feminist perspectives would make a profound difference, not only in the outcomes and processes in individual cases, but also in the development of the law

Feminist Judging Matters: How Feminist Theory and Methods Affect the Process of Judgment

The word “feminism” means different things to its many supporters (and undoubtedly, to its detractors). For some, it refers to the historic struggle: first to realize the right of women to vote and then to eliminate explicit discrimination against women from the nation\u27s laws. For others, it is a political movement, the purpose of which is to raise awareness about and to overcome past and present oppression faced by women. For still others, it is a philosophy--a system of thought--and a community of belief centering on attaining political, social, and economic equality for women, men, and people of any gender. For us, the editors of Feminist Judgments: Rewritten Opinions of the United States Supreme Court, feminism is all of those things and more. Feminism is both a movement and a mode of inquiry. In its best and most capacious form, feminism embraces justice for all and seeks to ally itself with rights-based movements for people of color, the poor, immigrants, refugees, religious minorities, disabled individuals, LGBTQ+ people, and other historically marginalized groups. This essay presents feminism as the foundation for a developing form of rich, complex, and practical legal scholarship--the lens and the means through which we may approach and resolve many legal problems. First, this essay explores the intellectual foundations of feminist legal theory and situates the United States and international feminist judgments projects within that scholarly tradition. It next considers how the feminist judgments projects move beyond traditional academic scholarship to bridge the gap between the real-world practice of law and feminist theory, a move that made the publication of Feminist Judgments: Rewritten Opinions of the United States Supreme Court an especially fitting topic for the 10th Annual Conference held at the University of Baltimore Center on Applied Feminism. When they write feminist judgments (using feminist perspectives or methods to produce revised versions of actual court opinions), feminist authors translate feminist theory into the language of law practice and judging. Their translations demonstrate the potential for lawyers to incorporate feminist theory and methods into oral and written arguments, for law students to gain deeper insights from and to learn the practical utility of feminist theory, and for judges to recognize how incorporating feminist perspectives may transform the reasoning or outcome of a case without changing the law or the facts of the underlying lawsuit. Finally, this essay uses contemporary examples of feminist judging to illustrate that the gap between feminist theory and judicial decision making is narrowing, a real-world advance that suggests a widening judicial audience for Feminist Judgments

Learning from Feminist Judgments: Lessons in Language and Advocacy

Judicial decision-making is not a neutral and logical enterprise that involves applying clear rules to agreed-upon facts. Legal educators can and should help students learn more about how judges actually go about making their decisions. The study of re-imagined judicial decisions, such as the alternative judgments from various Feminist Judgments Projects, can enrich the study of law in multiple ways. First, seeing a written decision that differs from the original can help students think “outside the box” constructed by the original opinion by showing them a concrete example of another perspective written in judicial language. Second, the rewritten judgments show law’s potential to change and its ability to serve different accounts of justice. Third, alternative judgments counter the narrative that law is objective while other arguments are political or biased. Fourth, feminist judgments provide tools for students to understand how persuasion and explanation are able to work effectively — in many different guises — even within the significant conventions and constraints of legal practice. Finally, but by no means least important, alternative feminist judgments are one of the only ways that “outsider” students — those whose perspectives have been historically erased or marginalized in law — can see themselves and their lived experiences reflected in the law. The Appendix to this essay includes short descriptions of courses drawing on rewritten decisions from the U.S. Feminist Judgments

Feminist Judging Matters: How Feminist Theory and Methods Affect The Process of Judgment

Professor Linda Berger rejoins her Feminist Judgments: Rewritten Opinions of the United States Supreme Court coauthors in this essay presenting feminism as the foundation for a developing form of rich, complex, and practical legal scholarship-the lens and the means through which we may approach and resolve many legal problems. First, this essay explores the intellectual foundations of feminist legal theory and situates the United States and international feminist judgments projects within that scholarly tradition. It next considers how the feminist judgments projects move beyond traditional academic scholarship to bridge the gap between the real-world practice of law and feminist theory. Finally, this essay uses contemporary examples of feminist judging to illustrate that the gap between feminist theory and judicial decision making is narrowing, a real-world advance that suggests a widening judicial audience for Feminist Judgments