AFFIRMATIVE - CRITIQUE - FEMINIST CRITIQUE OF PRIVACY 156

ANSWERS TO FEMINISM CRITIQUE – PERMUTATIONS

THE FEMINIST CRITIQUE GIVES AN INADEQUATE EXAMINATION OF PRIVACY, WHICH NECESSITATES THE PLAN TO RECONSTRUCT PRIVACY THROUGH A LESS GENDERED LENS

Linda C. McClain, Professor of Law, Hofstra University School of Law, March, 1999; WILLIAM & MARY LAW REVIEW, " RECONSTRUCTIVE TASKS FOR A LIBERAL FEMINIST CONCEPTION OF PRIVACY," EE2001, hxm P.

All of this probably sounds familiar, perhaps even too familiar. Reconstructing privacy requires moving beyond restating such rebuttals to feminist critiques of privacy. If they have not already done so, liberals should readily grant that an adequate conception of privacy in its various dimensions must clearly reject privacy's legacy of confinement and subordination, as well as the immunity of private aggression from the law's reach. The reconstructive task for an adequate liberal-and liberal feminist-model of privacy requires a normative argument as to why society should honor some form of public/private distinction and some limiting principles that admit of an appropriate role for governmental regulation of "private" life, "private" places, and "private" relationships.

Anita L. Allen, Professor, University of Pennsylvania School of Law, "COERCING PRIVACY," William & Mary Law Review, March, 1999, 40 Wm and Mary L. Rev. 723, EE2001-hxm, P.

Women have under-participated in societal affairs. Although the under- participation critique is sweeping and true, the critique does not suggest that women should not seek privacy, or eschew opportunities for personal privacy and private choice. Women today, especially educated and middle-class women, have lifestyle options that they can exercise with privacy-related interests in mind. Some of their options (e.g., celibacy, childlessness) have a cost. Encouraging women to recognize their options, and to exercise their options in ways that acknowledge that women's privacy and private choice are worth something, would be an appropriate feminist emphasis. Educating oneself, delaying marriage, controlling the timing of childbearing, working part-time-all of these are techniques women can use, and are using, to create lives in which they can enjoy forms and degrees of privacy unknown to American women fifty years ago. A felicitous balance between privacy and disclosure can come about if lessons about exploiting privacy and lessons about exploiting the new openness in public life are offered in tandem. Some feminists seem to assume that privacy and disclosure are differing [*745] models of how one might live. n85 Privacy and disclosure are better understood, however, as important and necessary dimensions of a range of good lives one can elect to live.

PERM-AS POLICYMAKERS WE MUST BE PRAGMATIC AND COMBINE THE CRITIQUE WITH THE AFFIRMATIVE PLAN

Susan B. Boyd, Chair in Feminist Legal Studies and Prof. of Law at University of British Columbia, 1997; CHALLENGING THE PUBLIC/PRIVATE DIVIDE," Challenging the Public/Private Divide: An Overview," EE2001hxm p. 16

Paying attention to the role of the state is, however, crucial to an understanding of current developments, even as analysis is shifted to multiple and local sites of struggle in order to challenge overly simplified approaches that considered the state to be either a neutral institution or an instrumentalist agent of capitalism or patriarchy (Brodie 1995, 23-8; Cooper 1993; Watson 19go). Liberal feminist expectations that legal change alone could deliver social equality between women and men have been revealed as overly optimistic (Boyd and Sheehy 1986). These expectations were based on a false assumption that the state was a relatively neutral institution that could be won over to a feminist cause that urged its use in dismantling discriminatory assumptions in laws and social policies. Moreover, powerfully evocative analyses of the state as an institution irretrievably captured by capitalist/patriarchal interests (e.g., MacKinnon 1989), which feminists and other social activists could or should eschew in their struggles, have also been revealed as overly pessimistic and simplistic (Abner, Mossman, and Pickett 19go, 6o2). These insights mean that a more nuanced analysis of the state is necessary, rather than an abandonment of its place in regulating public and private relations.

PRIVACY CAN BE AN ATTRACTIVE VALUE IF IT IS USED AS A MECHANISM OF FREEDOM FROM OPPRESSIVE INTRUSION

Linda C. McClain, Professor of Law, Hofstra University School of Law, March, 1999; WILLIAM & MARY LAW REVIEW, " RECONSTRUCTIVE TASKS FOR A LIBERAL FEMINIST CONCEPTION OF PRIVACY," EE2001, hxm P.

In effect, what privacy affords is the literal and metaphorical space or opportunity for self-development or self-constitution, as well as for revision of the self. I believe (as does Allen) that this idea of privacy is compatible with a dialectical model of the self as shaped by, but also shaping, culture. n68 As Allen humorously expresses this important facet of privacy: "Surely my privacy means more than that others should let me alone to be the best darn African-American, Methodist, suburban wife and mother I can be. Privacy is also a matter of freedom to escape, reject, and modify such identities." n69 Given feminism's interest in women's freedom to re-evaluate and escape oppressive connections, n70 this facet of privacy should be attractive.