MARY JOE FRUG MEMORIAL

SYMPOSIUM
PREFACE
Continually Re-Thinking: What Would
Mary Joe Frug Do? (A Preface to
Symposium Discussions)

MARTHA MINOW*
Only by continually re-thinking who we are and why we are
making the choices we make can we free ourselves from the belief
that our selves are constructed by our sexual identities.
~Mary Joe Frug1

T

wenty-five years ago, the world lost an inventive, elegant, passionate
legal scholar and teacher, pioneer in feminism and law, and my dear
and close friend.2 Mary Joe Frug brought verve and zest to every
interaction. She taught her students engagingly and memorably. She never
rested with one level of analysis—in teaching, writing, and conversation—
because more could also be seen and examined. She made each person
with whom she interacted feel unique and valued. She helped to launch
feminist legal scholarship, studied and worked against domestic violence,
and devoted serious attention in law teaching to race, class, sexual
orientation, and disability. She showed it is possible to be a passionate
parent and paradigm-shifting professional.

* Morgan

and Helen Chu Dean and Professor of Law, Harvard Law School.
Mary Joe Frug, Re-reading Contracts: A Feminist Analysis of a Contracts Casebook, 34 AM. U.
L. REV. 1065, 1140 ((1985) [hereinafter Frug, Re-reading Contracts].
1

2

For a remembrance written by her son, see Stephen Frug, Attempts: Mary Joe Frug,
1941−1991, STEPHEN FRUG BLOG (Apr. 4, 2011), http://stephenfrug.blogspot.com/2011/04/maryjoe-frug-1941-1991.html.

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She fearlessly pressed for analyses of gender embedded in legal
discourse and practice despite rebuffs and dismissal by peers. For example
she wrote her now-classic article, Rescuing Impossibility Doctrine: A
Postmodern Feminist Analysis of Contract Law,3 after a prominent scholar and
then-chair of the Contracts Section of the Association of American law
Schools declined a proposal for a program joining contracts and feminism.4
A murderer brutally cut short her vibrant life a quarter century ago.
The perpetrator was never found.
Posthumous publications of her teaching materials and her draft
articles, symposia inspired by her work, and more than one generation of
subsequent students and scholars followed.5 In the subsequent years,
women finally received appointments to the United States Supreme Court,
became deans of major law schools, and one became a serious contender
for the presidency of the United States; social media emerged as did
widely-experienced misogyny in digital expression.6 Bans on marriages
between same-sex couples fell before constitutional challenge even as legal
restrictions on abortion received judicial approval.7 International criminal
courts ruled that rape is a war crime and a crime against humanity even as
rape and sexual assault persist in daily life.8
In short, the questions and ideas of Mary Joe Frug remain crucial, as
three thoughtful scholars in this volume examine in explorations of
property, immigration, contract law, regulation, and in the realms of
family, friends, and work. Laura Rosenbury explores the legal and social
construction of human relationships and leadership with engaged and selfreflective discussion that Mary Joe would have celebrated. Laura
Underkuffler explores places of belonging with insights afforded by Mary
Joe Frug’s work, as well as critical race theory and theories of property; like

3 Mary Joe Frug, Rescuing Impossibility Doctrine: A Postmodern Feminist Analysis of Contract
Law, 140 U. PA. L. REV. 1029 (1992) [hereinafter Frug, Feminist Analysis of Impossibility Doctrine].
4

Id. at 1029.
See LIBBY S. ADLER ET AL., MARY JOE FRUG’S WOMEN AND THE LAW (4th edition 2008);
MARY JOE FRUG, POSTMODERN LEGAL FEMINISM (1992) [hereinafter FRUG, POSTMODERN LEGAL
FEMINISM]; Mary Joe Frug, A Postmodern Feminist Legal Manifesto (An Unfinished Draft), 105
HARV. L. REV. 1045 (1992); Symposium, For Mary Joe Frug: A Symposium on Feminist Critical
Legal Studies and Postmodernism (pts. 1 & 2), 26 NEW ENG. L. REV. 639, 26 NEW ENG. L. REV. 1173
(1992).
5

6 See Laura Barnett, The Conversation: Why Is There So Much Misogyny Online?, GUARDIAN
(May 4, 2012, 3:58 PM), http://www.theguardian.com/commentisfree/2012/may/04/conver

sation-misogyny-online-abuse.
7 Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Gonzales v. Carhart, 550 U.S. 124 (2007).
8 Phillip Weiner, The Evolving Jurisprudence of the Crime of Rape in International Criminal Law,
54 B.C.L. REV. 1207, 1220−21 (2013); see Statistics, RAINN, https://www.rainn.org/statistics (last
visited Apr. 19, 2016).

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Mary Joe, Laura focuses on people pushed to the margins in conventional
legal theory and practice. Joe Singer questions treatments of and silence
about paternalism in contract law. He also explores attitudes toward
regulation in the United States and the inextricable role of law in the
conditions for human freedom; like Mary Joe, he works to unearth
assumptions underneath the law. Most striking to me is the way that each
of these authors asks: What would Mary Joe Frug do? This question reflects
both high regard for the wisdom, imagination, and acumen of this
inventive legal scholar, as well as yearning for one more conversation with
Mary Joe herself.
As the contributors to the Symposium suggest, Professor Frug
introduced, elaborated, or demonstrated a range of strategies and tactics
that remain relevant, valuable, and worthy of further attention. Mary Joe
Frug warned about the danger of turning any form of critical analysis into
a formula or mechanical application,9 and hence this list is offered with that
serious caution, but also with hopes of further consideration of Frug’s
pioneering work:
(1) Identify concretely the effect of ideologies and sociallyconstructed structures that seem inevitable but are
culturally contingent;10
(2) Consider how a focus on gender difference is a clue to
potential problems with the way language and analysis is
proceeding rather than a revelation of truth or nature;11

9 Frug, Re-reading Contracts, supra note 2, at 1138 (“I want to caution readers not to freeze
this analysis into a rigid, prescriptive, analytical formula for eradicating gender.”); id. at 1139
(“[L]iterally applying my analysis of the gender-related aspects . . . to every legal texts one
reads would foster rather than challenge the constraints gender ideas have over our lives.”).
Thus:

The manifesto displays a commitment to deconstruct—to take apart
apparent dichotomies and show how apparent polarities need or
complement one another or exclude other important alternatives. . . . I
think that your commitment to deconstruction is not for its own sake or
to produce a mindlessly perpetual analytic machine that fractures
concepts and ideas.
Martha Minow, Incomplete Correspondence: An Unsent Letter to Mary Joe Frug, 105 Harv. L. Rev.
1096, 1103 (1992).
10 See FRUG, POSTMODERN LEGAL FEMINISM, supra note 5, at 128−30 (examining
maternalization, sexualization, and terrorization of the female body); Frug, Feminist Analysis of
Impossibility Doctrine, supra note 3, at 1031 (“Identifying the gendered character of the
discourses can therefore be a feminist strategy for challenging the extensive and complicated
network of social and cultural practices which legitimate the subordination of women.”).
11 See Frug, Feminist Analysis of Impossibility Doctrine, supra note 3, at 1032; Frug, Re-reading
Contracts, supra note 2, at 1066 (“[G]ender often functions as a kind of emotional and rational

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(3) Pay attention to style: Irony, playfulness, post-modern
deconstruction fueled by vision, not for its own sake;12
(4) Generate comparisons between topics that have
obvious gendered connections and topics that do not;13
(5) Resist any temptation to replace “male values” with
“female values” rather than to challenging the confining
structure that assigns gender to values; 14
(6) Combat stereotypes of a group by paying attention to
differences within the group;
(7) Devise and use detailed portraits of varied and diverse
potential readers of legal texts;15
(8) Commit to unearthing and examining economic, social,
biographical, and cultural contexts of legal materials;16
(9) Commit to rereading; and 17
(10) Pay explicit attention to the position of an author or
teacher in relation to readers and students.18
These suggestions point toward engagement with ideas and with
practice, toward critique and constructive action, toward serious analysis
and toward hopeful connections with other people. The articles offered
here pursue many of these approaches and offer thoughtful reminders and
extensions of Mary Joe Frug’s powerful ideas and dazzling example.

shortcut.”).
12 FRUG, POSTMODERN LEGAL FEMINISM, supra note 5, at 126 (“Style is important in
postmodern work.”); Alison Diduck, Review: Postmodern Legal Feminism, 49 FEMINIST REV. 119,
119 (1995) (reviewing MARY JOE FRUG, POSTMODERN LEGAL FEMINISM (1992)) (“Both this style
and her ideas are intensely personal and engaging, which ultimately makes this collection an
inspiring read.”)
13 Frug, Feminist Analysis of Impossibility Doctrine, supra note 5, at 1042 (comparing
impossibility doctrine and divorce and annulment law).
14

Id. at 1044.
Frug, Re-reading Contracts, supra note 2, at 1070−74 (introducing the feminist reader, the
woman-centered reader, the reader with a chip on the shoulder, the innocent gentleman
reader, the reader who is undressed for success, the individualist reader, the civil libertarian
reader, and the “undeserving” (or insecure) male or female reader. The rest of the article
considers how people situated in these multiple points of view might perceive materials in the
contracts casebook).
16 Id. at 1111.
17 Id. at 1135−40.
18 Id. at 1036−1140 (explaining why as a professor in a position of relative power, Frug had
reluctance to push some of her own scholarly ideas in the classroom).
15