First of all - happy month of celebration, Ms. JD! :)
What does it mean to be privileged? When I started law school, I would find words in my casebook readings, like “privileged,” that on first glance would jump out to me as my old friends from Women’s and Gender Studies classes in college. But then, ever-so-quickly, these sexy feminist theory meanings would vanish before my eyes, quickly morphing into their law school meanings. As I head into the second part of my second 1L semester, these terms have become first-nature to me. With the fear that I might forget what some of these words once meant to me—and the hope that some Ms. JD’ers (perhaps past alumna of Women’s and Gender Studies programs themselves- anyone?) might find this relevant/amusing as well—I put together this little glossary:
So You’re a Former Women’s Studies Major/Minor In Law School: An Abridged Glossary
Privileged -- Women’s and Gender Studies Definition: Power, in a certain society, given to an individual based on their identity rather than earned (male privilege, white privilege) though can be earned (class privilege), resulting in certain benefits and advantages Often referred to in terms of “invisible backpack."
Law School Definition: Civil Procedure. Information that is not discoverable based on FRCP 26(b)(2); includes attorney-client relationship; doctor-patient; spousal privilege; Fifth-Amendment against self-incrimination; may include others under state law; as well as Work Product Privilege (but not final); see Hickman.
Diversity -- Women’s and Gender Studies Definition: Differences between individuals: racial diversity, age diversity, gender diversity, etc.; often at the center of conversations about what’s wrong with “the feminist movement.”
Law School Definition: Civil Procedure. Requirement to get into federal court for jurisdiction if not a federal question. Between citizens of two states, citizen and an “alien,” citizen and foreign nation.
Reasonableness -- Women’s and Gender Studies Definition: Often flawed, objectivist, typically male-centric standard for determining one truth in the world; contrast with positionality or other feminist methodologies.
Law School Definition: Torts. Standard for negligence liability.
Consent -- Women’s and Gender Studies Definition: Crucial before sex, subject to lots of campaigns (“consent is sexy”), particularly about open communication and active consent (“yes means yes!”).
Law School Definition: Property, particularly Calabresi and Melamed’s definition of property versus liability. Property cannot be taken without consent; liability can be taken without consent.
Discovery -- Women’s and Gender Studies Definition: Who are you? How do you define yourself?
Law School Definition: Civil Procedure; process of exchange between opposing parties; see FRCP 26.
Curves -- Women’s and Gender Studies Definition: “Real women have them”-- although upon a further critical analysis we would probably add that this reflects a cis-gender viewpoint, which we think sounds pretentious but have to admit is an important critique of aligning gender and anatomy.
Law School Definition: Breeder of competition (and not the middle school, tissue-stuffing kind); often enemy #1, unless it happens to be your best friend.
Intersectionality -- Women’s and Gender Studies Definition: Theory that oppressions (race/gender/gender identity/age/class/nationality…) do not affect individuals solely as “gender issues” or “racial issues,” but rather oppressions are intersecting. Originated by Kimberle Crenshaw, but see also Patricia Hill Collins.
Law School Definition: Many cars at an intersection, likely resulting in a car crash. See Torts.
Okay, fine, that last one isn’t much of a law school Torts term. But I threw “intersectionality” in as a call to arms-- Kimberle Crenshaw originally coined that term in a law review article about laws that failed to address the experiences of battered women of color (she was in fact analogizing intersectionality to an accident at an intersection). Yes, a law review article! About changes that needed to happen in law! – and crucial ones at that. And I know that other feminist legal scholars, like Crenshaw, have long bridged the gap between WGST and Law School definitions. But sitting in a 1L lecture hall, the divide between the WGST/Law School definitions in the list above is still far and wide. For the next few months, I’ll try to focus on one of the terms each month, both how it does/does not get addressed in the law school setting and what we can do about it. For as Prof. Crenshaw suggests, it’s not the division between these definitions that’s powerful—it’s bringing the WGST definitions into the law school definitions, and using that move the law in a more just direction.
And until then, any more to add to the list?