Hard Cases and Bad LawrnThe Feminist Legal Revolutionrnby Philip JenkinsrnDuring the next four years, the Chnton administration willrnappoint dozens of federal judges, in addition to (perhaps)rntwo or three Supreme Court Justices, hi the eonfirmationrnprocedures for these individuals, issues of gender politicsrnare likeh to predominate. Abortion will obious]y be one suchrncjuestion, as may sexual harassment, but we should also hearrnmuch more about other controversies based ultimately on perceivedrnconflicts of interest between the sexes. We alreadyrnknow how conservative justices arc interrogated on these matters;rnbut wc should also be familiar with the key questions thatrncan appropriately be posed to a justice of liberal or feminist inclination.rnFor example, it would be proper to ask about cases invoKingrnwomen who allege thev have been victimized by male suspects.rnhi such cases, is the presumption of innocence vitiated by thernrace or gender of the accused or the victim? Should the burdenrnof proof be transferred to the accused? Is it proper to imposernsevere penalties without due process of law? And shouldrncriminal law be so broadly defined as to leave it up to one individualrnto decide whether a crime has occurred, regardless ofrncorroboration or proof? hi short, what (if any) legal rights andrnprotections should exist for men accused of victimizing women?rnThese questions mav seem absurd, but they have all beenrnposed b numerous laws passed bv American states as a consequencernof the feminist revolution in legal theory that has occurredrnin the last quarter of a century.rnThe feminist movement in law is based on principles thatrnPhilip Jenkins is a professor in the Administration of JusticernDepartment at Pennsylvania State University.rnare collectivist and authoritarian, and the statutes founded onrnthese ideas involve a systematic violation of natural fairness andrnjustice. Recent legislation has effected drastic changes in therncommonly accepted principles of Anglo-American law andrnconstitutional practice, although the “revolution” has so far receivedrnremarkably little criticism or even comment. In thern1990’s, feminist theory will certainly cause a vast expansion ofrnthe scope of both civil and criminal law and produce new litigationrnon a scale that could overwhelm the existing court system.rnIt mav also provide the intellectual and political justificationrnfor some significant manifestations of judicialrnoppression.rnModern American feminism grew up in the shadow of thernblack civil rights movement of the 1960’s, and that heritage isrnapparent in its emphasis on the suffering and violence believedrnto derix’e from gender-based inequalities of power. Similarrntoo is the quest for solutions in the form of penal legislationrnto correct these perceived injustices. There is now a substantialrnbody of feminist writing and research in the areas of crime,rnlaw, and justice, and there are many feminist academics studyingrnthese areas. As we might expect from the contemporaryrnacademic world of North America, it is extraordinarily rarernto find dissident voices challenging feminist orthodoxies onrnthese issues, and the literature generally speaks with onern(monotonous) voice.rnIn the first decade of the new feminism, one major emphasisrnof the movement was on the crime of rape, which was presentedrnas the moral equivalent of the lynchings inflicted onrnblacks in the segregation era. The antirape campaigns of thernI970’s had a deci,sivc impact on subsequent feminist belief andrn18/CHRONICLESrnrnrn