The legal subject in exile

Duke Law Journal

Volumn 51, Issue 1, 2001, Pages

  Abrams, Kathryn ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0041329875     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: 10.2307/1373230     Document Type: Review

References (4)

1. By "Constitution in Exile," I refer to a constellation of features that characterized pre-New Deal constitutional interpretation. Those elements of the pre-New Deal judicial approach which are particularly implicated by my analysis of the Supreme Court's view of the legal subject include a circumscribed view of the power of Congress, a disinclination to defer to legislative factfinding and decisionmaking, and a restricted view of the role of either federal or state government in addressing or ameliorating group-based inequalities.
2. Interestingly, discussions of the legal subject (or the legal subjects characteristic of certain doctrinal areas) occur more frequently in forms of legal scholarship that are less focused on doctrine and more focused on the role of legal decisions or legal imagery in shaping popular conceptions of particular claimants or groups. This focus emerges, for example, in feminist scholarship that analyzes the ways that women as legal subjects appear to be conceptualized by courts and the effect that these conceptualizations have on popular perceptions of women. See, e.g., Mary Coombs, Telling the Victim's Story, 2 TEX. J. WOMEN & L. 277, 277 (1993) (describing the sociocultural costs of exposing the victims of sexual assault to a highly confrontational legal setting where their credibility and character are attacked); Martha Mahoney, Legal Images of Battered Women, 90 MICH. L. REV. 1, 2 (1990) (emphasizing the ways in which law distorts the image and experiences of abused women).
3. Interestingly, discussions of the legal subject (or the legal subjects characteristic of certain doctrinal areas) occur more frequently in forms of legal scholarship that are less focused on doctrine and more focused on the role of legal decisions or legal imagery in shaping popular conceptions of particular claimants or groups. This focus emerges, for example, in feminist scholarship that analyzes the ways that women as legal subjects appear to be conceptualized by courts and the effect that these conceptualizations have on popular perceptions of women. See, e.g., Mary Coombs, Telling the Victim's Story, 2 TEX. J. WOMEN & L. 277, 277 (1993) (describing the sociocultural costs of exposing the victims of sexual assault to a highly confrontational legal setting where their credibility and character are attacked); Martha Mahoney, Legal Images of Battered Women, 90 MICH. L. REV. 1, 2 (1990) (emphasizing the ways in which law distorts the image and experiences of abused women).
4. The few sustained accounts of the legal subject that appear in legal scholarship with any sort of doctrinal focus explicitly note the failure of mainstream (and often critical) doctrinal