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Social Reproduction in and of Feminist Legal
Theory

Deborah Dinnert

My reflections on the subject of "origins" begin with social

reproduction in feminist activism and thought. This topic is more
commonplace in feminist scholarship outside of the legal academy. Feminist
sociologists, political philosophers, and historians define social reproduction
as the "various kinds of work-mental, manual, and emotional-aimed at
providing the historically and socially, as well as biologically, defined care
necessary to maintain existing life and to reproduce the next generation."'
Social reproductive labor includes unpaid care work within families, kin
networks, and communities as well as various forms of paid work. Such labor
divides along racial as well as gender lines. 2 The law's role in distributing,
rewarding, and regulating social reproductive labor is pivotal to the
construction of gender, race, and class identities and inequalities.
Over the last half century, feminist activists fought to realize justice
in the organization of social reproduction. The standard law-school
curriculum teaches only part of this story: the effort to free individuals from
prescriptive gender roles related to work and family. Constitutional law
casebooks discuss the development of the "intermediate scrutiny" standard
under the Equal Protection Clause. Students learn that this doctrinal
trajectory led the Supreme Court to strike down laws that excluded women
from professional and educational spheres and denied men access to benefits
related to familial care. Even if a student does not take a specialized
employment discrimination class, she is likely to gain a basic knowledge of
Title VII of the Civil Rights Act of 1964 as well as an intuition that disparate

t Professor of Law, Cornell Law School. Thank you to Serena Mayeri for fruitful conversations about
this piece. I am also grateful to Allie Blank, Poonam Daryani, Jelani Hayes, and the staff of the Yale
Journalof Law & Feminism for their thought-provoking prompt, insightful feedback, and excellent
editorial work.
' Barbara Laslett & Johanna Brenner, Gender andSocial Reproduction:HistoricalPerspectives,
15 ANN. REV. Soc. 381, 383 (1989).
2 See, e.g., Tithi Bhattacharya, Introduction:Mapping Social Reproduction Theory, in SOCIAL
REPRODUCTION THEORY: REMAPPING CLASS, RECENTERING OPPRESSION (Tithi Bhattacharya ed.,
2017); Susan Ferguson, Intersectionalityand Social-ReproductionFeminisms: Toward an Integrative
Ontology, 24 HIST. MATERIALISM 38, 48-54 (2016); Evelyn Nakano Glenn, From Servitude to Service
Work: HistoricalContinuities in the Racial Division of PaidReproductive Labor, 18 SIGNS 1, 1-3
(1992); Dorothy E. Roberts, Spiritual and MenialHousework, 9 YALE J. L. & FEMINISM 51, 59 (1997).

Copyright C 2023 by the Yale Journal of Law and Feminism

2023 ] SocialReproduction in and of FeministLegal Theory 23

treatment is unlawful. 3 A central theme in family law is the rise of formal

equality, in arenas ranging from the resolution of custody disputes to
marriage licensing. Dominant narratives thus suggest that the animating
principles of feminist legal thought and practice are nondiscrimination,
prohibitions on gender stereotyping by employers, and state neutrality
respecting sex.
This view of feminist legal theory, however, obscures a more
fundamental struggle. A less well-known strand of feminist legal activism
has focused upon making social reproduction a public, rather than private,
responsibility. The liberal welfare state, which developed during the
Progressive Era, New Deal, and post-World War II period, supported male
breadwinners and enforced their provision for dependents within hetero-
patriarchal family structures.4 As a result, workplace practices and policies
took as their model male employees who benefitted from the unpaid labor of
wives. Formal equality could help women break into these jobs, but only to
the extent that they could mimic the male ideal. The liberal welfare state took
for granted that care for children, the sick, and the elderly took place within
nuclear families. Caregivers, regardless of gender, did not enjoy full
economic citizenship. Families bore the costs of social reproductive labor-
from health insurance for childbirth to the costs of leave from work-largely
as a private responsibility. Feminists fought to transform labor and
employment laws, family laws, and social welfare policies on the model of
working mothers. Sex neutrality was sometimes a means, at other times an
obstacle, and, often, an objective orthogonal to the goal of public
responsibility for social reproduction.
Feminists advocated for laws that valued women's unpaid social
reproductive labor and for a welfare state that socialized care. Reva Siegel
analyzes women's claims to property rights in their household labor in the
antebellum era.5 In the Progressive Era, social feminists prioritized economic
justice over equal treatment of the sexes.6 When Lochnerian jurisprudence

' She is perhaps less likely to focus on disparate impact liability, which remains in tension with
dominant conceptions of formal equality. For a conservative exploration of that tension, see, for
example, Ricci v. DeStefano, 557 U.S. 557, 594-97 (2009) (Scalia, J., concurring). For an explanation
that disparate impact liability is indeed essential to the achievement of substantive equality, see Ricci,
557 U.S. at 620-29 (Ginsburg, J., dissenting).
' The liberal welfare state originated in Progressive Era advocacy, was institutionalized in federal
law and policy during the New Deal, and developed further in the post-World war II period and during
the Great Society. For a sampling of the feminist analyses of this history, see generally, ALICE KESSLER-
HARRIS, IN PURSUIT OF EQUITY: WOMEN, MEN, AND THE QUEST FOR ECONOMIC CITIZENSHIP IN 20"-
CENTURY AMERICA (2001); JENNIFER KLEIN, FOR ALL THESE RIGHTS: BUSINESS, LABOR, AND THE
SHAPING OF AMERICA'S PUBLIC-PRIVATE WELFARE STATE (2003); and SUZANNE METTLER, DIVIDING
CITIZENS: GENDER AND FEDERALISM IN NEW DEAL PUBLIC POLICY (1998).
s Reva B. Siegel, Home as Work: The First Woman's Rights Claims Concerning Wives'
HouseholdLabor, 103 YALE L. J. 1073, 1081-1146 (1994).
6 For an account of feminist advocacy resulting in Muller v. Oregon, 208 U.S. 412 (1908), see
NANCY F. COTT, THE GROUNDING OF MODERN FEMINISM 115-42 (1987). For a critical discussion of
this advocacy and the resulting decision, see Jill Elaine Hasday, ProtectingThem from Themselves: The
Persistenceof Mutual Benefits Arguments for Sex and Race Inequality, 84 N.Y.U. L. REV. 1464, 1501-
07 (2009).
24 Yale Journal of Law and Feminism [Vol. 34.2:22

struck down protective labor standards, they devised a gendered strategy to

win sex-specific standards that they hoped would serve as an entering wedge.
The 1908 case of Muller v. Oregon, which upheld a state limit on the hours
women could work, is often located in the feminist anti-canon.7 Certainly,
the Court's decision reinforced gender stereotypes, suggesting that women
were physically weaker than men were and that their primary social role lay
in motherhood. Yet this decision was also a pragmatic feminist victory for
state protection of working-class women, given the legal constraints of the
time. In the post-World War II period, labor feminists reworked the social
feminist vision to take account of women's changing economic roles as
familial providers and of their shifting identities as workers. They used
unions to fight for women's rights both to employment opportunity and to
fulfilling lives outside their work, including time spent caring for their
families. 8 The just organization of social reproduction, they understood,
necessitated legal regulation of the labor market and employment
relationship.
In the late 1960s and through the 1970s, labor feminists intensified
and broadened their struggle. Myra Wolfgang, a Detroit organizer for the
Hotel Employees and Restaurant Employees Union, opposed the demise of
maternalist labor standards she saw as critical to protecting female workers
who lacked bargaining power, who were not unionized, and who did not
enjoy coverage under federal labor statutes.9 When enforcement of Title VII
began to wash away the architecture of maternalist protection, Wolfgang re-
interpreted the rise of antidiscrimination law as a potential catalyst to expand
labor regulation. She joined Caroline Davis, Director of the Women's
Department of the United Auto Workers, in fighting for the extension of
protective standards to men. 10 Across the country, the Union Women's
Alliance to Gain Equality (Union WAGE) lobbied the California Industrial
Welfare Commission for the extension of labor protection to agricultural and
domestic workers and for increases in the minimum wage, overtime pay, and
maximum-hours rules." Union WAGE opposed the proposed Equal Rights
Amendment because of the threat that equal treatment would jeopardize
maternalist labor standards, when there existed insufficient political will to

'Muller v. Oregon, 208 U.S. 412 (1908).

' For this definition of labor feminism, see DOROTHY SUE COBBLE, THE OTHER WOMEN'S
MOVEMENT: WORKPLACE JUSTICE AND SOCIAL RIGHTS IN MODERN AMERICA 4 (2004). See also
DENNIS A. DESLIPPE, "RIGHTS, NOT ROSES": UNIONS AND THE RISE OF WORKING-CLASS FEMINISM,
1945-80 (2000); NANCY FELICE GABIN, FEMINISM IN THE LABOR MOVEMENT: WOMEN AND THE
UNITED AUTO WORKERS, 1937-1975 (1990); LANE WINDHAM, KNOCKING ON LABOR'S DOOR: UNION
ORGANIZING IN THE 1970s AND THE ROOTS OF A NEW ECONOMIC DIVIDE (2017).
9 Deborah Dinner, Equal by What Measure? The Lost Struggle for Universal State Protective
Labor Standards, in VULNERABILITY AND THE LEGAL ORGANIZATION OF WORK 283, 289-90 (Martha
Albertson Fineman & Jonathan W. Fineman eds., 2017).
10
Id., at 290-94. For further discussion of Wolfgang's biography and ideology, see COBBLE, supra
note 8, at 2-3, 188, 192.
" Dinner, supra note 9, at 296.
2023 ] Social Reproduction in and of FeministLegal Theory 25

realize universal standards.' 2 Labor feminists understood that sex

discrimination law, in the absence of a strong welfare state, might serve
corporate interests rather than workers. Their insight proved prescient, as the
assault on unions, demise of the family-wage ideal, growth of feminized
service sectors, and contraction of both public welfare and private
employment benefits produced an increasingly precarious labor force.
While labor feminists advocated a humane workplace that supported
workers in their social reproductive roles, the women's liberation movement
that blossomed in the late sixties pursued public forms of care provision. One
of their most important goals was free, federally funded, community-
controlled childcare. The National Organization for Women (NOW) Bill of
Rights demanded that "child care facilities be established by law on the same
basis as parks, libraries and public schools . .. as a community resource to
be used by all citizens from all income levels." 3 Radical and socialist
feminists believed that universal childcare would liberate women from the
constraints of solitary mothering and remediate the extraction of unpaid
childrearing labor. Representatives Shirley Chisholm and Bella Abzug
pursued the feminist vision in Congress and, although their specific bill did
not advance, they helped to shape the Comprehensive Child Development
Act of 1971. The passage of this Act brought the nation the closest it ever has
come toward universal childcare, but the mobilization of the New Right
against the legislation yielded a devastating veto from President Nixon."
In addition to labor regulation and public forms of care, feminists
fought for social welfare entitlements for mothers. These efforts ranged from
reforms that preserved marriage as a privileged social status to ones that
sought to dismantle hetero-patriarchal households as a site of benefit
distribution. Betty Blaisdell Berry, the Chair of NOW's Task Force on the
Family, worked to achieve "the necessary reforms to make housewife a
bonafide occupation." 5 She wanted "homemakers"-married women who
cared full time and did not engage in paid work-to receive both public and
private benefits. Berry and fellow NOW activists called for Social Security
credits for homemakers, which would protect women against economic
vulnerability at the time of divorce or widowhood. Berry's proposal was
ambitious in imagining public remuneration of care work, yet it nevertheless

" Joyce Maupin, Equal Rightsfor Whom?, box 16, folder 7, Union WAGE (Women's Alliance to
Gain Equality) Records, San Francisco State University Labor Archives and Research Center (on file
with the author).
1 KIRSTEN SWINTH, FEMINISM'S FORGOT'EN FIGHT: THE UNFINISHED STRUGGLE FOR WORK AND
FAMILY 160 (2018).
1 Deborah Dinner, The UniversalChildcareDebate: Rights Mobilization, Social Policy, and the
Dynamics of FeministActivism, 1966-1974, 28 LAW & HIST. REV. 577, 613-16 (2010).
" The Marriage and Family Committee, NOW, Coordinator Betty Berry, "Suggested Guidelines in
Studying and Comments on the Uniform Marriage and Divorce Act," April 11, 1971, 2, box 47, folder
42, Records of the National Organization for Women, 1959-2002 (inclusive), 1966-1998 (bulk), MC
496: M-152 Schlesinger Library, Harvard University (on file with the author). For further discussion of
Berry, see SUZANNE KAHN, DIVORCE, AMERICAN STYLE: FIGHTING FOR WOMEN'S ECONOMIC
CITIZENSHIP IN THE NEOLIBERAL ERA 44-46 (2021) and SWINTH, supra note 13, at 115-17 (2018).
26 Yale Journal of Law and Feminism [Vol. 34.2:22

would preserve marital families' legal and economic privilege. By contrast,

Margaret Prescod, a Caribbean American public school teacher and activist
in Brooklyn, advanced a vision that disestablished marriage as a site of
economic citizenship. Prescod co-founded Black Women for Wages for
Housework, elaborating upon socialist feminists' use of the metaphor of
"wages" to unmask how women's unpaid social reproductive labor sustained
capitalism. Prescod linked this transnational movement to the domestic
welfare rights struggle for poor women's dignity and economic security. 16
Both Berry and Prescod, therefore, sought to revalue women's unpaid care
work within the welfare state, though their proposed solutions held different
implications for both class and gender.
These are just a few examples of dynamic and multi-pronged forms
of activism to transform liberalism according to feminist ideals. This history
remains largely forgotten in part because conservative opposition overcame
feminist advocacy. In place of public support for care, since the 1970s
neoliberal governance has facilitated the development of markets that
perform social reproductive functions. "State neglect," in the words of
historian Sara Matthiesen, has intensified and rendered more difficult the
labor of "family making" for those at the social and economic margins.' 7
Consider some illustrations: The United States is one of only two industrial
countries that fails to provide paid maternity leave, and employers are less
likely to provide paid family and medical leave as a fringe benefit to low-
income workers than to professionals. 18 The lack of public childcare and the
inadequacies of the daycare market weighs most heavily on mothers, who
continue to assume primary responsibility for childrearing.1 9 Home health

" On the Wages for Housework movement, see WAGES FOR HOUSEWORK: THE NEW YORK
COMMITTEE 1972-1977: HISTORY, THEORY, DOCUMENTS (Silvia Federici & Arlen Austen eds., 2017);
Heather Berg, An Honest Day's Wage for a Dishonest Day's Work: (Re)Productivism andRefusal, 42
WOMEN'S STUDIES Q. 161 (2014); and Maud Bracke, Between the Transnational and the Local:
Mapping the Trajectories and Contexts of the Wagesfor Housework Campaign in 1970s Italian
Feminism, 22 WOMEN'S HIST. REV. 625 (2013). For further discussion comparing Berry and Prescod's
strategies, see Deborah Dinner, On Justice Ginsburg and the Political Economy of the Family, THE LAW
& POL. ECON. PROJECT BLOG (Oct. 29, 2020), https://lpeproject.orgfblog/on-justice-ginsburg-and-the-
political-economy-of-the-family/ [https://perma.cc/BL4B-RBLU].
1 SARA MATTHIESEN, REPRODUCTION RECONCEIVED: FAMILY MAKING AND THE LIMITS OF
CHOICE AFTERROE V. WADE 17 (2021).
18
See CHANTEL BOYENS, MICHAEL KARPMAN & JACK SMALLIGAN, URBAN INSTITUTE, ACCESS
TO PAID LEAVE IS LOWEST AMONG WORKERS WITH THE GREATEST NEEDS: FINDINGS FROM THE
DECEMBER 2021 WELL-BEING AND BASIC NEEDS SURVEY 7 (2022),
https://www.urban.org/sites/default/files/2022-
07/Access%20to%20Paid%20Leave%20Is%20Lowest%20among%20Workers%20with%20the%20Gre
atest%20Needs.pdf [https://perma.cc/M2Z6-DTYX]; Catherine Albiston & Lindsey Trimble O'Connor,
Just Leave, 39 HARV. J. L. & GENDER, 1, 6-8 (2016) (explaining that low-income workers are unlikely
to take leave even when available because of the threat of retaliation).
" See Jennifer March Augustine & Kate Prickett, Gender Disparities in Increased Parenting Time
Duringthe COVID-19 Pandemic:A Research Note, 59 DEMOGRAPHY 1233, 1245-1246 (2022) (finding
that fathers marginally increased their childrearing time compared to mothers during the pandemic, but
mothers took on disproportionate responsibility for the tasks parents found most stressful such as
supervising schooling and caring while also engaging in paid work); Claire M. Kamp Dush, Jill E.
Yavorsky & Sarah J. Schoppe-Sullivan, What Are Men Doing While Women Perform Extra Unpaid
Labor? Leisure and Specialization at the Transitions to Parenthood, 78 SEX ROLES 715, 725-26
2023 ] Social Reproduction in and of FeministLegal Theory 27

aides-disproportionately women of color, often immigrants-remain

excluded from coverage under federal and state protective labor standards.20
Paid care workers, from childcare workers to home health aides, endure long
hours, low wages with few benefits, and, sometimes, dangerous work
conditions.2 1 The COVID-19 pandemic laid bare the inadequacies of state
support for social reproduction, when school and daycare closures forced
women out of the labor market, low-waged female workers of color
disproportionately assumed health and economic burdens as, variously,
essential workers or laid-off employees, and lack of resources overwhelmed
public health systems.2 2 The pandemic did not produce the crisis in social
reproduction; it exposed it.
In concluding this Essay, I want to explore the social reproduction of
feminist legal theory. Legal education is itself a component of social
reproduction. Such education serves as a gatekeeper to the profession that
makes, enforces, and reforms society's rules. It possesses the potential either
to replicate or to disrupt existing structures of inequality. For these reasons,
the version of feminist legal theory taught in most law-school classrooms has
real-world consequences.
The feminist aspiration toward collective public responsibility for
social reproduction persists in legal scholarship. Any attempt at a
comprehensive survey in this short Essay would be quixotic, and I merely
gesture here toward the breadth of this scholarship. Some are explicitly
applying the legal visions of social feminists and socialist feminists to
contemporary problems.23 Liberal proposals preserve the divide between
state, market, and family but call for workplaces more accommodating of

(finding that despite trends to non-specialization, gender inequalities in leisure and housework persist
among highly-educated, dual earner couples); Meredith Johnson Harbach, Childcare Market Failure,
2015 UTAH L. REv. 659 (2015) (explaining why the private daycare market fails to provide quality and
affordable care); LEILA SCHOCHET, CTR. AM. PROGRESS, THE CHILD CARE CRISIS IS KEEPING WOMEN
OUT OF THE WORKFORCE 11-12 (2019), https://www.americanprogress.org/wp-
content/uploads/2019/03/ECPP-ChildCare-Crisis-report-2.pdf [https://perma.cc/9KQW-NG42]
(showing that the childcare market failure especially harms single mothers).
20
EILEEN BORIS & JENNIFER KLEIN, CARING FOR AMERICA: HOME HEALTH WORKERS IN THE
SHADOW OF THE WELFARE STATE (2012).
21 Maureen Coffey, Still Underpaidand Unequal: Early ChildhoodEducators FaceLow Pay and
a Worsening Wage Gap, CTR. AM. PROGRESS (2022), https://www.americanprogress.org/article/still-
underpaid-and-unequal/ [https://perma.cc/KTD5-T93D] (demonstrating that workers in licensed
childcare centers are paid very low wages); Noelle Driver, What Do We Owe Health Care Workers Who
Earn Low Wages? 24 AMA J. ETHICS 819, 819 (2022) (discussing the low wages of nursing and patient
care assistants, home health aides, and other health care workers).
2 Deborah Dinner, The Care Crisis: Covid-19, Labor Feminism, & Democracy, in THE

CAMBRIDGE HANDBOOK OF LABOR AND DEMOCRACY 217 (Mark Barenberg & Angela B. Cornell, eds.,
2022).
23
PRABHA KOTISWARAN, DANGEROUS SEX, INVISIBLE LABOR: SEX WORK AND THE LAW IN INDIA
(2011) (seeking to recast sex work as labor and to transform its legal regulation via a. politics of
redistribution rather than harm); Arianne Renan Barzilay, Back to the Future: Introducing Constructive
Feminism for the Twenty-First Century: A New Paradigmfor the Family and Medical Leave Act, 6
HARv. L & POL'Y REv. 407 (2012); Cynthia Grant Bowman, Recovering Socialism for Feminist Legal
Theory in the 21st Century, 49 CONN. L. REv. 117 (2016).
28 Yale Journal of Law and Feminism [Vol. 34.2:22

familial care responsibilities and public subsidies for familial care.2 4 Race-
and class-sensitive analyses of unions and employment structures extend the
labor feminist tradition,25 with a particular focus on the challenges facing
paid care workers both within and outside of families. 26 Martha Fineman and
other scholars offer critiques of antidiscrimination ideals and the dominance
of equality within certain strands of feminist legal advocacy.27 This literature
draws attention to the ways in which society relies on care-work for its
replication and on the resulting obligations to offer public support for
dependency. 28 Scholars explore the failures of the market to nourish families
and call for workplace and welfare reforms to support children, working
parents, and the elderly. 29 Still others call for expansive state recognition for
families that disestablishes marriage and for the distribution of public
benefits through relationships other than marriage.30 Comparative analyses
of both sex discrimination law and welfare state structures expand the
feminist legal imagination.3 1 Even feminist dissenters from advocacy for
entitlements for parents engage with the consequences of the conservative
thwarting of feminist advocacy, which produced employer rather than state-
sponsored welfare regimes, reinforced heteronormativity, and sublimated
feminist goals to competing state interests. 32

2 See JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO
Do ABOUT IT (2001); Katherine M. Franke, Taking Care, 76 CHI. KENT. L. REV. 1541, 1542-43 (2001)
(contrasting an approach that seeks to expand state responsibility for dependency with one that seeks a
more equitable balance between work and family).
25 Marion Crain, Between Feminism and Unionism: Working Class Women, Sex Equality, and
Labor Speech, 82 GEO. L. J. 1903 (1994); Judith A. Scott, Why a Union Voice Makes a Real Difference
for Women Workers: Then and Now, 21 YALE J. L. & FEMINISM 233 (2009).
2 Peggie R. Smith, Aging and Caringin the Home: Regulating PaidDomesticity in the Twenty-
FirstCentury, 92 IOWA L. REV. 1835 (2007).
27
MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF
DIVORCE REFORM (1991); Deborah Dinner, Beyond 'Best Practices':Employment-Discrimination Law
in the Neoliberal Era, 92 IND. L. J. 1059 (2017). See also Susan Frelich Appleton, How Feminism
Remade Family Law (andHow it Did Not), in RESEARCH HANDBOOK ON FEMINIST JURISPRUDENCE
426,439-44 (Cynthia Grant Bowman & Robin West, eds., 2018) (noting the limits of formal equality in
family law); Laura A. Rosenbury, Postmodern Feminist Legal Theory: A Contingent, Contextual
Account, in FEMINIST LEGAL THEORY IN THE UNITED STATES AND ASIA: A DIALOGUE 127, 133-34
(Cynthia Grant Bowman, ed. 2019) (questioning whether it is desirable, or even possible, to make
gender irrelevant in the workplace and arguing that some gender performances may be liberating).
28
MARTHA ALBERTSON FINEMAN, THE AUTONOMY MYTH: A THEORY OF DEPENDENCY (2004)
(articulating a theory of inevitable and derivative dependencies).
29
MAXINE EICHNER, THE FREE-MARKET FAMILY: HOW THE MARKET CRUSHED THE AMERICAN
DREAM (AND HOW IT CAN BE RESTORED) (2020).
30
MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER: THE SEXUAL FAMILY AND OTHER
TWENTIETH CENTURY TRAGEDIES (1995); NANCY POLIKOFF, BEYOND (STRAIGHT AND GAY)
MARRIAGE: VALUING ALL FAMILIES UNDER THE LAW (2008); Alice Ristroph & Melissa Murray,
Disestablishingthe Family, 119 YALE L. J. 1236 (2010); Laura A. Rosenbury, Friendswith Benefits?,
106 MICH. L. REV. 189 (2007) (arguing for legal recognition of friendship as well as family).
31 See, e.g., LABOUR LAW, WORK, AND FAMILY: CRITICAL AND COMPARATIVE PERSPECTIVES
(Joanne Conaghan & Kerry Rittich eds., 2005); Julie C. Suk, Are Gender Stereotypes Badfor Women?
Rethinking Antidiscrimination Law and Work-Family Conflict, 110 COLUM. L. REV. 1 (2010).
32 Mary Ann Case, How High the Apple Pie-A Few Troubling Questions about Where, Why, and
How the Burden of Carefor ChildrenShould be Shifted, 76 CHI. KENT L. REV. 1753, 1763-65, 1771-72
(2001) (arguing that oftentimes subsidies for childrearing benefit high-prestige professional men and
burden women in these positions, who are less likely to have children, and opposing the redistribution of
2023 ] Social Reproduction in and of FeministLegal Theory 29

Despite the robust field of feminist legal theory, the understanding

of feminist practice transmitted in most law-school classrooms remains a
narrow one. For the most part, law school curricula remain tethered to the
Langdellian case method, which confines legal theory to doctrinal evolution
in the courts. This obscures the full scope of feminist legal thought and
activism in two ways. To start, legal education focuses on the positive
evolution of doctrine and tends to elide alternative paths not taken. Courses
do not cover feminist and other forms of critical legal advocacy that did not
come to fruition. In addition, the focus on litigation and federal judicial
decisions marginalizes the study of state courts as well as legislative and
administrative advocacy. Together, these characteristics of legal education
emphasize sex-discrimination law and sideline feminist legal thought and
activism respecting protective labor standards, social insurance, and welfare
entitlements. For example, if they are lucky, students might study Ruth Bader
Ginsburg's famous case, Weinberger v. Wiesenfeld, which won "mother's
benefits" for widower fathers within Social Security.33 They are far less likely
to learn of feminist advocacy for Social Security credits for homemakers.
Recovering a richer history of feminist legal thought and practice
may help chart a course from the neoliberal regime toward the just
organization of social reproduction.34 This project of recovery requires
broadening the lens of historical analysis to include feminist labor leaders,
grassroots activists, and attorneys, and to investigate debates that unfolded
at the bargaining table, within feminist commissions and conferences, and
before state administrative agencies and legislatures. We possess the seeds
of change in feminist legal history and theory; we just need to cultivate
them.

time and resources from nonparents to parents); Katherine M. Franke, Theorizing Yes: An Essay on
Feminism, Law, and Desire, 101 COLUM. L. REV. 181, 188-95 (2001) (interrogating some feminists'
normative emphasis on mothering as the most important form of social reproduction and highlighting
the consumptive motives for and facets of biological reproduction); Katherine M. Franke, Becoming a
Citizen: Reconstruction Era Regulationof African American Marriages, 11 YALE J. L. & HUMAN. 251
(1999); KATHERINE M. FRANKE, wEDLOCKED: THE PERILS OF MARRIAGE EQUALITY (2015).
3 Weinberger v. wiesenfeld, 420 U.S. 636 (1975).
4 I explore many of the ideas in this essay in DEBORAH DINNER, THE SEx EQUALITY DILEMMA:
WORK, FAMILY, AND LEGAL CHANGE IN NEOLIBERAL AMERICA (forthcoming 2023). I join other
historians in recovering a capacious feminist legal imagination. See, e.g., SERENA MAYERI, REASONING
FROM RACE: FEMINISM, LAW, AND THE CIVIL RIGHTS REVOLUTION (2011); KATHERINE TURK,
EQUALITY ON TRIAL: GENDER AND RIGHTS IN THE MODERN AMERICAN WORKPLACE (2016).