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Channeling Mary Joe Frug

LAURA A. ROSENBURY*
How does law participate in the construction of gender? How should
law participate in the construction of gender? Who wins and who
loses?

hese three questions have structured my teaching and scholarship


for over a decade. Mary Joe Frugs work inspired the questions, and
her work shapes my attempts to answer them. Indeed, I often find
myself having imaginary dialogues with Frug, channeling her likely
responses to recently published work and longing for her interventions.
I am therefore honored to be included in this celebration of Frugs life
and work. This Essay first describes my path to Frug, detailing the role of
her murder in my awakening feminist consciousness. Parts II and III then
analyze the role of her work in my teaching and scholarship. Finally, in
Part IV, I offer some brief concluding thoughts about the ways Frugs
approach to feminism has influenced my emerging understandings of
gender and leadership in my first year as a law school dean.
I. From Protest to Theory
Looking back, I can best explain Frugs role in my feminist legal
analysis by emphasizing timing, proximity, and resonance. I never had the
opportunity to speak, meet, or otherwise correspond with Frug before she
was murdered in April 1991, while walking down a Cambridge,
Massachusetts street.1 Indeed, I had never even read her work. As a junior
at Harvard, I was still devouring the basics of the womens studies
curriculum. I had just discovered feminist legal theory, but my
introduction was limited to the work of Catharine MacKinnon and Robin
West.2

* Dean and Levin, Mabie & Levin Professor of Law, University of Florida Fredric G. Levin
College of Law.
1

See, e.g., Murder Jolts Haven for Elite in Boston Area, N.Y. TIMES (Apr. 9, 1991), available at
http://www.nytimes.com/1991/04/09/us/murder-jolts-haven-for-elite-in-boston-area.html.
2 At the time, my exposure was limited to chapters of MacKinnons book Feminism
Unmodified and Wests powerful article in the Wisconsin Womens Law Review, both published

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Frugs name entered my world when news of her murder spread


across campus, prompting rallies on the steps of Widener Library, other
teach-ins about violence against women, and a moment of silence at our
annual Take Back the Night March. Students and professors repeatedly
invoked Frugs name as they decried the traditional tools of patriarchy,
including the tool of brutal physical violence.3 Interestingly, in my
recollection, law was rarely included among those tools. Instead, law was
framed as a tool of liberation, to be called upon to end the violence. Legally
mandated patriarchy was a relic of the past.
I finally read Frugs Re-Reading Contracts: A Feminist Analysis of a
Contracts Casebook4 in the fall of 1991 at the direction of my senior thesis
advisor, Marjorie Garber. I was inspired by Frugs analysis even though I
had never sat in a law school class and had no sense of the role casebooks
played in those classes. Indeed, I had no idea what lawyers actually did
other than what I had seen on TV, with my most recent exposure being the
hearings considering Clarence Thomass nomination to the Supreme Court.
Despite my outsider status, or maybe because of it, Re-Reading Contracts
made me realize that laws role in reinforcing gender hierarchy was far
from over. Indeed, laws perpetuation of patriarchy was more insidious
than the equal protection victories of the 1970s suggested,5 going beyond
overt state action to the rules that shaped seemingly private contractual
agreements.
The next semester, my final semester of college, I enrolled in an
undergraduate course on Women and Notions of Property, taught by
Patricia Williams, who was visiting from Columbia Law School. The course
brilliantly wove together case law with the historical and literary analysis I
had come to expect from a womens studies course. Even though I had
in 1987. See CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW
(1987); Robin L. West, The Difference in Womens Hedonic Lives: A Phenomenological Critique of
Feminist Legal Theory, 3 WIS. WOMENS L. J. 81 (1987).
3 The same week that Frug was murdered, a woman was raped in her home just blocks
from the Frug crime scene. See Ira E. Stoll, Crime Wave, HARV. CRIMSON (Apr. 12, 1991),
available
at
http://www.thecrimson.com/article/1991/4/12/crime-wave-pwithin-one-weektwo/?page=1.
4 Mary Joe Frug, Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook, 34 AM. U.
L. REV. 1065 (1985).
5 For a general overview of those cases, see CYNTHIA GRANT BOWMAN, LAURA A.
ROSENBURY, DEBORAH TUERKHEIMER & KIMBERLY A. YURACKO, FEMINIST JURISPRUDENCE:
CASES & MATERIALS 2545 (4th ed. 2011); FRED STREBEIGH, EQUAL: WOMEN RESHAPE AMERICAN
LAW (2009). I had been exposed to the cases in 1991 when I took a sociology course on Women
and Law taught by Lenore Weitzman. My teaching assistant for the course, Harvard Law
student Andrea Kramer, who is now the Chief of the Civil Rights Division of the
Massachusetts Attorney General, helped me understand the doctrinal backdrop of those cases
and the progress they represented.

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previously read Foucault,6 it was not until this class that I truly grasped the
nuanced ways that law was not a self-contained system, but rather
intersected with other social forces to regulate behavior and maintain
power and privilege.
One day in April 1992, Professor Williams walked into class, began to
lecture, and then stopped. She put aside the reading for the day and began
to talk about something that had recently happened at the Harvard Law
Review. As with law school casebooks, I really did not understand what a
law review was, other than one at American University had published ReReading Contracts. But the emotion in Professor Williamss voiceher
frustration, her anger, and then her anguish and tearshelped me through
the confusion.
Professor Williams said that Frug had been writing an article when she
died. The Harvard Law Review agreed to publish it in its unfinished state,
with the title A Postmodern Feminist Legal Manifesto (An Unfinished Draft).7
Apparently that decision was controversial. Soon after Frugs article was
published, some law review editors also published a parody of the article,
with the title He-Manifesto of Post-Mortem Legal Feminism and a byline
of Mary Doe, Rigor-Mortis Professor of Law.8 They distributed this
parody at a banquet that happened to take place on the one-year
anniversary of Frugs death.9
Professor Williams went on to detail all of the ways this parody did
violence to Frugs postmodern feminist analysis.10 The parody mocked
Frugs word choice, suggested that Frug was unfashionable and dour,
described her husband as a wimp while at the same time implying that her
article was published only because her husband was a Harvard Law School
professor, and shockingly stated that womens proper place was in the
home.11 As I took it all in, I realized that these words came from law

6 1 MICHEL FOUCAULT, THE HISTORY OF SEXUALITY: AN INTRODUCTION (Robert Hurley


trans., Vintage Books 1980) (1978).
7 Mary Joe Frug, A Postmodern Feminist Legal Manifesto (An Unfinished Draft), 105 HARV. L.
REV. 1045 (1992) [hereinafter Frug, Manifesto].
8 Daniel M. Steinman, Parody of Frug Article Draws Angry Response, HARV. CRIMSON (Apr.
11, 1992), available at http://www.thecrimson.com/article/1992/4/11/parody-of-frug-articledraws-angry/.
9 Id. For an in-depth discussion of the parody, see ELEANOR KERLOW, POISONED IVY: HOW
EGOS, IDEOLOGY, AND POWER POLITICS ALMOST RUINED HARVARD LAW SCHOOL 169275 (1994).
10 Of course, I cannot remember all of the ways Williams critiqued the parody. For some of
her thoughts written much later, see Patricia J. Williams, The Disquieted American, THE NATION
(May 8, 2003), https://www.thenation.com/article/disquieted-american/.
11

The parody was never distributed beyond the banquet, and the law review asked
attendees not to share it. I therefore have never seen an actual copy of the parody. My
understanding derives from Professor Williamss class and news articles describing the

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students not much older than I was. Misogyny and patriarchy were not
confined to the older generation of law professors, judges, and legislators.
Instead, Harvard Law School was producing a new generation of lawyers
who resisted gender equality and maybe actively thwarted it.
At that years Take Back the Night March, just days later, we
marched to the law school campus and surrounded the white house that
housed the Harvard Law Review. We lit candles and had a moment of
silence in honor of Frug and her work. We then yelled shame repeatedly
at the house. Faces appeared in the third floor windows, looking down on
us. I could not read their expressions. When I finally read A Postmodern
Feminist Legal Manifesto, I was shocked that the students in this white house
had so disrespected Frugs path-breaking work.
I graduated and struggled to find a post-college path. After two years
of working in jobs that did not seem to hold a future, I found myself going
back to Harvard for law school, in large part because of Frugs work. The
first year was jarring. Most days, voices like those in the parody seemed to
dominate.12 Luckily, Martha Minow was my civil procedure professor, but
I struggled to find other voices like those of Frug and Williams. I received
my worst 1L grade, indeed my worst law school grade, in contracts.
I almost dropped out, despite accumulating about $40,000 in debt to
cover my 1L year. A conversation with Professor Minow convinced me to
stay. She emphasized that I could forge my own curricular path during my
second and third years. To my surprise, she also strongly encouraged me to
do the law review competition.
That is how I ended up inside that white house in August 1995 as an
editor of the Harvard Law Review. I learned that the white house was called
Gannett House, that the editors alone selected all of the articles published
in the eight issues per year, and that we painstakingly edited all of those
articles. Of the forty or so new 2L editors selected through the competition,

contents of the parody. See, e.g. Andrea Sachs, Hiring Splits Harvard Law, 78 ABA J. 20 (1992);
Fox Butterfield, Parody Puts Harvard Law Faculty in Sexism Battle, N.Y. TIMES (Apr. 27, 1992),
available
at
http://www.nytimes.com/1992/04/27/us/parody-puts-harvard-law-faculty-insexism-battle.html?pagewanted=all; Ceci Connolly, Critics Say Parody of Murdered Professor
Illustrates Harvard Misogyny, AP NEWS ARCHIVE (Apr. 13, 1992, 6:14 PM),
http://www.apnewsarchive.com/1992/Critics-Say-Parody-of-Murdered-Professor-IllustratesHarvard-Misogyny/id-dbac93bdaae73a1807d0590f7f4af989; David Margolick, At the Bar; In
Attacking the Work of a Slain Professor, Harvards Elite Themselves Become a Target, N.Y. TIMES
(Apr. 17, 1992), available at http://www.nytimes.com/1992/04/17/news/bar-attacking-workslain-professor-harvard-s-elite-themselves-become-target.html; Steinman, supra note 8.
12 I realized that this problem was not unique to Harvard when I later read Lani Guiniers
analysis of law school classrooms, published during my 1L year. See Lani Guinier et al.,
Becoming Gentlemen: Womens Experiences at One Ivy League Law School, 143 U. PA. L. REV. 1,
3738, 5967 (1994).

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only nine of us were women. Luckily, a woman from a previous


competition had deferred her start date to complete PhD coursework, so
the female membership of our volume reached double digits. The volume
ahead of us had more women, and they held important leadership
positions, but the law review still felt very male.13
At times, I too felt male, as I modified my speaking stylelearning to
talk in pointsin the hopes of being more persuasive in article selection
meetings and meetings exploring the competitions gender disparities.
Each time I did so, I remembered Frugs words about the importance of
language and style.14 Was I reforming a system or being coopted by it?
How would Frug have challenged the dominant speaking style of the
editors?
Working late at night in the library on the third floor, I often
remembered my first encounter with Gannett House. Now that I was
inside, I better understood the entitlement and disdain that led to the
parody of Frugs work. The law review had changed to some extent; the
tradition of an annual parody issue had been abandoned, and many more
articles exploring feminist topics had been published.15 I even published a
feminist student note.16 Yet the baseline of what was considered serious
legal scholarship remained far from feminist.
When the drama society put on its yearly parody performance during
the spring of my 3L year, a character that appeared to be modeled after me
repeatedly yelled that she wanted to turn the Harvard Law Review into the

13 This gender disparity persisted long after I left the law review. Women comprised only
20% of the editors from the class of 2012. See Erin Fuchs, Harvard Law is Finally Dealing with its
Huge Sexism Problem, BUS. INSIDER (Dec. 10, 2013, 9:56 AM), http://www.businessinsider.com/
is-harvard-law-school-sexist-2013-12. In response, the law review finally adopted an
affirmative action plan for women, similar to those that had been proposed since the 1980s
(including when I was on the law review). The plan has begun to close the gender gap, with
women comprising 38% of the editors from the class of 2015. Id.
14 Frug, Manifesto, supra note 7, at 104748.
15 See, e.g. Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape
Law, 110 HARV. L. REV. 563 (1997); Cynthia Grant Bowman & Elizabeth Mertz, A Dangerous
Direction: Legal Intervention in Sexual Abuse Survivor Therapy, 109 HARV. L. REV. 549 (1996);
Nancy E. Dowd, A Feminist Analysis of Adoption, 107 HARV. L. REV. 913 (1994) (reviewing
ELIZABETH BARTHOLET, FAMILY BONDS: ADOPTION AND THE POLITICS OF PARENTING); Cheryl
Hanna, No Right to Choose: Mandated Participation in Domestic Violence Prosecutions, 109 HARV.
L. REV. 1849 (1996); Tracy E. Higgins, Democracy & Feminism, 110 HARV. L. REV. 1657 (1997);
Deborah L. Rhode, Feminism and the State, 107 HARV. L. REV. 1181 (1994); Note, Patriarchy is
Such a Drag: The Strategic Possibilities of a Postmodern Account of Gender, 108 HARV. L. REV. 1973
(1995).
16 Note, Cheering on Women & Girls in Sports: Using Title IX to Fight Gender Role Oppression,
110 HARV. L. REV. 1627 (1997).

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Harvard Feminist Law Review.17 I was annoyed, but mostly because the
possibility was preposterous. I had participated in the system, not
transformed it. As Audre Lourde had said not too long before, the
masters tools will never dismantle the masters house.18 Yet one more
time, I wondered what Frug would do.
II. Into the Classroom
During my fourth year of legal practice, I was lucky enough to begin
teaching a feminist legal theory seminar at night, as an adjunct professor at
Fordham Law School. Because it was a seminar, I put together my own
materials, replicating both my own path to feminist legal theory and the
path that I had learned in law school. Just like my undergraduate studies,
each of my law school classes that attempted to integrate feminism started
(and almost always stopped) with Catharine MacKinnon and Robin West. I
did the same on my syllabus.
The theories of MacKinnon and West provide a wonderful contrast to
the liberal feminism embodied in the equal protection cases that most
students encounter in law school.19 Both theorists thus tend to energize
students who choose to take feminist legal theory, inspiring them to go
beyond the thinking generally instilled during the first year of law school.
Indeed, reading MacKinnon or West often restores the hope for change that
motivated many of these students to embark upon law school in the first
place.
Yet the discussion that first year at Fordham did not really take off
until the fourth or fifth week, when we turned to Frugs A Postmodern
Feminist Legal Manifesto. The same was true the following year at Fordham,
as well as my first several years teaching at Washington University in St.
Louis. Many students are at first intimidated by Frugs three postmodern
principles,20 and the elusive meaning of postmodernism itself. I urge them
to just note the discomfort and keep going,21 in order to focus on Frugs
application of those principles to the female body. Almost always
something then clicks, as the class explores how legal rules terrorize,
sexualize, and maternalize the female body.22 The rest of the semester can

17 For another brief discussion of the role of the law review in this parody performance, see
Note, Making Docile Lawyers: An Essay on the Pacification of Law Students, 111 HARV. L. REV.
2027, 2039 n.54 (1998).
18 Audre Lourde, The Masters Tools Will Never Dismantle the Masters House, in SISTER
OUTSIDER 11013 (1984).
19

See sources cited supra note 5.


Frug, Manifesto, supra note 7, at 104648.
21 Id. at 1046.
22 See id. at 104950.
20

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then be devoted to analyzing the repressive function of law alongside the


constructive function of legal language as a critical frontier for feminist
reforms.23
It took me several years, but now I start feminist legal theory with
Frugs A Postmodern Feminist Legal Manifesto. With Frug as a starting point,
the class from day one sees law as more than a tool of repression or
liberation; law is also a constructive force, shaping our very ideas of
gender. Frug used anti-prostitution rules as her primary example, which
can seem dated given many students engagement with anti-trafficking
campaigns, but laws participation in the sexualization and terrorization of
the female body still holds up. Many students make comparisons between
anti-prostitution rules and trafficking law, rape law, or rules governing
sexual harassment and assault on campusand they almost always
become engaged, and often outraged, by Frugs connection between antiprostitution rules and marriage.
Regardless of whether a woman is terrorized or sexualized, there are
social incentives to reduce the hardships of her position, either by marrying
or by aligning herself with a pimp.24 With that brilliant sentence, Frug
inspires a conversation about the intersection of law, social institutions,
markets (formal and informal), and individual choice that lasts the entire
semester. Some students resist Frugs conclusion that [i]n both cases
[prostitution and marriage] she typically becomes emotionally, financially,
physically, and sexually dependent on and subordinate to a man.25 In
doing so, however, students must confront the many constraints on choice
that continue to exist even as educated women increasingly enter the
professions.
Issues of class, race, and other forms of privilege therefore immediately
come to the fore, as do foundational aspects of the U.S. economy,
particularly the privatization of dependency. Frug thus sets the stage for
discussions of Angela Harriss work exploring how gender is always raced
and race is always gendered.26 I often wonder whether Frug would have
expanded her engagement with Harriss work,27 and class discussion

23

Id. at 1046.
Id. at 105455.
25 Id. at 1055.
26 See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581,
61214 (1990). For a related yet different discussion of the intersection of race and gender, see
Kimberl Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of
Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139
(1989), available at http://chicagounbound.uchicago.edu/uclf/vol1989/iss1/8.
27 Both Harris and Crenshaw are cited in A Postmodern Feminist Legal Manifesto, but Frug
did not deeply engage with them. See Frug, Manifesto, supra note 7, at 1051 n.5.
24

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provides the opportunity to channel imaginary dialogues between the two


theorists. Later, we can bring both Frug and Harris to bear when the class
considers why African-American women in the United States are much
less likely to marry than other groups of women, leading to a very lively
(and generally critical) discussion of Rick Bankss 2011 book Is Marriage for
White People?28 In turn, these discussions lead to a more nuanced
examination of the role of state-supported marriage in our capitalist
economy, perfectly situating discussions of socialist feminism29 and other
challenges to the privatization of dependency, including those from
Dorothy Roberts,30 Drucilla Cornell,31 and Patricia Williams.32 By this point
in the semester, students begin to channel Frug on their own, imagining
how she would engage with these theorists examining the role of law,
markets, and other social institutions in the construction of gender and
intimacy.
Of course, we still also discuss MacKinnon and West,33 but the initial
frame of Frug helps situate their work as part of a broader discussion of
laws regulatory and constructive role. At times this leads to critiques
How do MacKinnon and West themselves participate in the construction of
gender?but at other times it leads to a greater appreciation of their
unique contributions. Frug emphasizes that gender is fluid and shifting,
contingent on history and context,34 and reading Judith Butler helps the
class see the role of individual choices about how to perform ones gender
within the constraints of that context and historical moment.35 Once
students understand that they need not adopt the fixed meaning of gender
suggested by MacKinnon or West, they are more likely to embrace the role

28 RALPH RICHARD BANKS, IS MARRIAGE FOR WHITE PEOPLE?: HOW THE AFRICAN AMERICAN
MARRIAGE DECLINE AFFECTS EVERYONE (2011).
29 See e.g., Zillah Eisenstein, Constructing a Theory of Capitalist Patriarchy and Socialist
Feminism, 25 CRITICAL SOC. 196 (1999).
30 See, e.g., Dorothy E. Roberts, The Value of Black Mothers Work, 26 CONN. L. REV. 871,
87173 (1994).
31

See, e.g., Drucilla L. Cornell, The Solace of Resonance, 20 HYPATIA 215, 21719 (2005).
See, e.g., PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS, 1231 (1991).
33 Our consideration goes beyond my early exposure, see supra note 2, to include a greater
range of the work produced by both MacKinnon and West. See, e.g., CATHARINE A.
MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION
(1979); CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE (1989); ROBIN
WEST, CARING FOR JUSTICE (1997); Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1
(1988).
34 See Frug, Manifesto, supra note 7, at 1046.
35 See JUDITH BUTLER, UNDOING GENDER (2004); JUDITH BUTLER, GENDER TROUBLE:
FEMINISM AND THE SUBVERSION OF IDENTITY (1990).
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of power (as articulated by MacKinnon) and relationship (as articulated by


West) in constructions of gender.
Students also more easily identify and critique the MacKinnon/West
binary that some more recent work suggests defines the field of feminist
legal theory itself. For example, students generally are inspired by
Katherine Frankes critique in Theorizing Yes of feminist legal theorists
focus on danger and dependency.36 Yet in considering Frankes argument
that feminist legal theorists have largely ignored and even perpetuated
repronormativity, students immediately ask why Franke did not engage
with Frug. Although not using the term repronormativity, Frug
emphasized almost a decade before Franke that [t]he maternalized female
body triangulates the relationship between law and the meanings of the
female body. It proposes a choice of roles for women.37 Women may thus
choose motherhood as an alternative to the sexualization and
terrorization that Frug identifies, deeply constraining the choices they may
have otherwise made in the absence of such forces. This link to Frug does
not lessen the effects of the repronormativity that Franke identifies, but it
does help students understand that feminist legal theorists other than
MacKinnon and West grappled with this issue well before Frankes
powerful analysis. In turn, students better understand the ways Frugs
death stunted the development of feminist legal theory during the 1990s.
Likewise, when considering Janet Halleys Split Decisions: How and Why
to Take a Break from Feminism,38 students question why Halley relies almost
exclusively on the work of Catharine MacKinnon and Robin West to define
feminist legal theory. Accepting that definition, students often agree that a
break from feminism is desirable (as do I). But none of my students want to
accept that definition. By starting the course with Frug, they have already
become steeped in the ways law, including feminist law reform, constructs
gender. Students therefore see how legal theorists have addressed Halleys
concerns within feminism, making a break unnecessary. In fact, students
are confused that Halley mentions Frug only in passing,39 as they see much
of Halleys book as an extension of Frugs approach to postmodern
feminist legal theory.
In light of these classroom experiences, when Cynthia Grant Bowman
asked me to become a co-author of the fourth edition of Feminist
Jurisprudence,40 I urged her to reintroduce Frug in the chapter generally

36 Katherine M. Franke, Theorizing Yes: An Essay on Feminism, Law, and Desire, 101 COLUM. L.
REV. 181 (2001).
37

See Frug, Manifesto, supra note 7, at 1055.

38 JANET HALLEY, SPLIT DECISIONS: HOW AND WHY TO TAKE A BREAK FROM FEMINISM
39

Id. at 16768, 176.


40 BOWMAN ET AL., supra note 5.

(2006).

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covering feminist legal theory. Apparently the entire section on


postmodern feminism had been dropped after the second edition, based on
the view it had become irrelevant. I obviously disagreed. In my view,
postmodern feminist legal theory is the primary way by which feminist
legal theory stays relevant. As articulated by Frug, postmodern feminist
legal theory helps us better understand the fluidity of gender, the power
and fragility of the male/female binary, the relational nature of meaning
and identity, and the constitutive nature of law and law reform.
Postmodern feminism thus returned to Feminist Jurisprudence,41 starting
with an excerpt of A Postmodern Feminist Legal Manifesto.42
III. Onto the Page
Scholars have built upon and expanded Frugs work in multiple
ways.43 Yet as the work of Franke and Halley indicates, Frug has not
become one of the defining voices in feminist legal theory. Indeed, Franke
and Halley can largely ignore Frugs work and still be seen as engaging
with feminist legal theory. Frugs murder obviously has diluted the power
of A Postmodern Feminist Legal Manifesto. She was brutally denied the
opportunity to finish the article, to present it at conferences and
workshops, to write follow-up articles, and to urge all of us to consider her
postmodern ideas alongside those of MacKinnon, West, and others.
I have deeply missed Frugs ongoing scholarly voice as I have
struggled to write feminist legal theory of my own. I too seek to analyze
laws role in the construction of gender, but I often feel alone. In fact, I
often wonder if the legal academy ran out of big feminist ideas twenty-five
years ago, after the groundbreaking contributions of MacKinnon, West,
Harris, and Frug. Other scholarls since that time have brilliantly
incorporated and developed theory to contribute to feminist law reform
debates,44 but the days of feminist legal theory as theory seem to be over.
Frugs murder ended both a vibrant life and a scholarly discourse.
41

Id. at 17788.
Id. at 17781.
43 See, e.g., DUNCAN KENNEDY, SEXY DRESSING ETC.: ESSAYS ON THE POWER AND POLITICS OF
CULTURAL IDENTITY (1995); Libby Adler, An Essay on the Production of Youth Prostitution, 55
ME. L. REV. 191 (2003); Anne Bloom, To Be Real: Sexual Identity Politics in Tort Litigation, 88 N.C.
L. REV. 357 (2010); Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV.
1259 (2000); Angela Harris, Transgender Rights, and Whipping Girl: A Transsexual Woman on
Sexism and the Scapegoating of Femininity, 36 WOMEN'S STUD. Q. 315 (2008) (book review); Tracy
E. Higgins, By Reason of their Sex: Feminist Theory, Postmodernism, and Justice, 80 CORNELL L.
REV. 1536 (1995); Jessica Knouse, Using Postmodern Feminist Legal Theory to Interrupt the
Reinscription of Sex Stereotypes Through the Institution of Marriage, 16 HASTINGS WOMENS L.J.
159 (2005).
42

44

See, e.g., ELIZABETH M. SCHNEIDER, BATTERED WOMEN AND FEMINIST LAWMAKING (2002);

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My own publications as a law professor embrace Frugs postmodern


approach, but they fall far short of a manifesto. My first publication
examined the ways default property distribution rules upon divorce and
death contribute to particular constructions of wives and the care work of
women more generally.45 In hindsight, I realize this article wholeheartedly
embraces Frugs method, although I did not frame the article as such. In
light of the pressures generally facing tenure-track law professors, I instead
framed the article as examining the disconnects between family law and
trusts and estates law. It was only in the last part of the article that I began
to analyze how some of these rules supported a particular conception of
the sacrificing wife.46 In addition, foreshadowing some of Halleys
critiques, I analyzed how the partnership theory of marriage, long heralded
by feminists, was not the solution to this problem because it benefits some
women to the exclusion of others,47 and reinforces traditional gender roles
rather than freeing women and men from them.48
I ended that article by articulating the hope that other feminist scholars
would reexamine the partnership theory of marriage and consider
alternative theories of marriage that could underlay new default rules
governing property distribution at divorce and death without reinforcing
gender role oppression.49 Ten years later, even as same-sex marriage has
been intensely litigated and ultimately secured,50 I am still waiting.51 My
hopes for a robust, feminist debate about the effects of feminist law reform
have been dashed. Unlike Halley, I tend not to attribute this stagnation to
the deficits of existing feminist legal theories. Instead, I trace the silence
back to Frugs death.
Adrienne D. Davis, Regulating Sex Work: Erotic Assimilation, Erotic Exceptionalism, and the
Challenge of Intimate Labor, 103 CAL. L. REV. 1195 (2015); Deborah Dinner, The Costs of
Reproduction: History and the Legal Construction of Sex Equality, 46 HARV. C.R.-C.L. L. REV. 415
(2011); Aya Gruber, Rape, Feminism, and the War on Crime, 84 WASH. L. REV. 581, 607 (2009);
Dorothy E. Roberts, Spiritual and Menial Housework, 9 YALE J.L. & FEMINISM 51 (1997); Vicki
Schultz, Lifes Work, 100 COLUM. L. REV. 1881 (2000); Marc Spindelman, Gay Men and Sex
Equality, 46 TULSA L. REV. 123 (2010); Madhavi Sunder, Piercing the Veil, 112 YALE L.J. 1399
(2003); Deborah Tuerkheimer, Slutwalking in the Shadow of Law, 98 MINN. L. REV. 1453 (2014).
45 Laura A. Rosenbury, Two Ways to End a Marriage: Divorce or Death, 2005 UTAH L. REV.
1227.
46

Id. at 127882.
Id. at 128285.
48 Id. at 1286.
49 Id. at 1290.
50 See Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
51 Nancy Polikoff came closest to answering my call, but she primarily advocated for
limiting the couples who would be subject to the partnership theory of marriage. See NANCY
D. POLIKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE: VALUING ALL FAMILIES UNDER THE
LAW (2008).
47

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Of course, it is both hubris and fantasy to believe that Frug would have
wanted to engage with my work in particular. It is not fantasy, however, to
suspect that Frugs ongoing work would have laid the foundation for new
approaches to feminist law reform or, at the very least, served as
inspiration for younger scholars like myself to propose those approaches.
Frugs manifesto already provides that inspiration, and I mourn the
additional insights and provocations that her future work would have
contained.
But I strive to practice what I (and Frug) teach, to note the discomfort
in this case the grief and frustrationand keep going.52 My
subsequent work has thus continued to focus on relationships, literally
building upon the postmodern insight that meaning and identity come into
being only through relationships.53 One strand of my scholarship examines
how the backdrop of legal marriage affects both intimate relationships that
do not hinge on sex,54 and sexual relationships that do not hinge on
intimacy.55 In both contexts, I continue to examine how relationships
contribute to constructions of gender, even as I have been advised that my
work would reach a broader audience if I did not constantly tie
relationship recognition and regulation to gender. Whenever I waver, I
return to Frugs words: [t]he question . . . is not whether sex differences
existthey door how to transcend themwe cantbut the character of
their treatment in law.56
Another strand of my scholarship examines how law contributes to
constructions of children and childhood.57 Some people assume this work
represents my own break from feminism. I have long believed, though,
that parent-child relationships contribute to constructions of gender as
much, if not more, than relationships between adults. I recently was able to
articulate that point more explicitly, exploring the role of children in
constructing both gender and feminism.58 I have thus been able to extend
Frugs insights in a multi-layered fashion, exploring how legal rules
52

Frug, Manifesto, supra note 7, at 1046.


One of the best articulations of this insight can be found in ZILLAH R. EISENSTEIN, THE
FEMALE BODY AND THE LAW 9 (1988).
53

54 Laura A. Rosenbury, Friends with Benefits?, 106 MICH. L. REV. 189 (2007); Laura A.
Rosenbury, Working Relationships, 35 WASH. U. J.L. & POLY 117 (2011); Laura A. Rosenbury,
Work Wives, 36 HARV. J. L. & GENDER 345 (2013).
55 Laura A. Rosenbury & Jennifer E. Rothman, Sex In and Out of Intimacy, 59 EMORY L.J. 809,
81314 (2010).
56

Frug, Manifesto, supra note 7, at 1052.


Laura A. Rosenbury, Between Home and School, 155 U. PA. L. REV. 833 (2007).
58 Laura A. Rosenbury, A Feminist Perspective on Children and Law: From Objectification to
Relational Subjectivities, INTERNATIONAL PERSPECTIVES AND EMPIRICAL FINDINGS ON CHILD
PARTICIPATION 17 (Benedetta Faedi & Tali Gal, eds. 2015).
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contribute to constructions of children and how those constructions in turn


contribute to constructions of gender.
Finally, a decade after my first article, I have begun a return to
marriage. I have not yet taken up my own call to articulate a feminist
alternative to the partnership theory of marriage, but I have extended my
analysis of the ways the current law of marriage privileges some women
and men over others.59 I have also sought to uncover additional ways,
beyond the partnership theory, that marriage contributes to the
privatization of dependency.60 Although I still long for Frugs
interventions, I am heartened by new feminist engagements with the postsame-sex marriage legal landscape.61 Maybe feminist legal theorists will
begin to more robustly examine the reforms that produced our current
(mis)conceptions of equalitarian marriage.
In each of these ways, Frugs work has deeply influenced my scholarly
trajectory. At times I wonder if Frug would be proud, but I immediately
realize that is the wrong question. Instead, I wonder how she would
challenge, debate, and push me. Most of all, I long for Frug to ask: Where
is your manifesto?
IV. Becoming a Dean
You look too young to be a dean. Since becoming a law school dean
nine months ago,62 I have heard those words at least once a week, if not
more. The (male) president of our law review also introduced me at a large
banquet this fall by saying: We feel so lucky to have such a young and
vivacious dean. The law review faculty advisor subsequently came to my
office to explain I shouldnt hold those words against the student because
he, the advisor, had described me in that way and he didnt mean it to be
sexist; he sincerely believes a law school dean needs to be energetic.
When I asked if he would describe another law school dean in that manner
a male dean who is exactly my agethe advisor replied: But you look
so much younger!
I am 46, two years younger than Frug was at her death. As with my
teaching and scholarship, I long to ask Frug how she would respond to
such statements. Even more so, I would love to hear her thoughts on what
those statements mean about current constructions of law professors, law

59 Laura A. Rosenbury, Marital Status and Privilege, 16 J. GENDER RACE & JUST. 769, 77273
(2013).
60

Laura A. Rosenbury, Federal Visions of Private Family Support, 67 VAND. L. REV. 1835
(2014).
61 See KATHERINE FRANKE, WEDLOCKED: THE PERILS OF MARRIAGE EQUALITY (2015).
62 Laura A. Rosenbury, U. FLA. L., https://www.law.ufl.edu/faculty/laura-rosenbury (last
visited Apr. 9, 2016).

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school deans, and the legal academy as a whole. Other deans and
professors have offered powerful insights, but I suspect Frug would add
much to the conversation. Indeed, my imaginary conversations with Frug
now revolve around legal constructions of both gender and leadership.
Once again, Frugs murder, and the loss of her voice, are deeply felt. I
celebrate her work as I mourn what could have been. The bittersweet
nature of the channeling produces discomfort, but also hope and even joy. I
embrace Frugs words and keep moving on.