Lucinda M. Finley

Bio: Lucinda M. Finley is an academic researcher from Yale University. The author has contributed to research in topics: Tort & Tort reform. The author has an hindex of 8, co-authored 18 publications receiving 328 citations. Previous affiliations of Lucinda M. Finley include Georgia State University & DePaul University.

Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning

Abstract: Such is the dilemma of the woman speaker. That the categories of patriarchal language distort what she might like to say is no longer in question. Whether she is a literary critic or theorist, poet, linguist, philosopher, sociologist, or natural scientist [or lawyer], the formalities of her discipline, the syntax of its proper practice, the canons of its acceptable style have been exposed as carrying the sexist reasoning it is her task to replace .... Once conceptualized in traditional categories, feminist protest may already have capitulated to the political order reflected in disciplinary structures. Concepts such as \"utility\" and \"rights\" . . . may not be usable by feminists when it is understood that such terms belong, and have their meaning, within a bourgeois society founded on a view of \"man\" and \"man's place\" which is unacceptable. I Law reaches every silent space. It invades the secrecy of women's wombs. It breaks every silence, uttering itself. Law-language, jurisdiction. It defines. It commands. It forces. 2 The starting point of feminist work must be found in women's lives and not in legal definitions. 3

Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate

Abstract: There is a natural temptation to escape if we can, to close the door behind us on this despised realm which threatens to engulf all women, whether as mothers, or in marriage, or as the invisible, ill-paid sustainers of the professionals and social institutions. There is a natural fear that if we do not enter the common world of men, as asexual beings or as \"exceptional\" women, do not enter it on its terms and obey its rules, we will be sucked back into the realm of servitude, whatever our temporary class status or privileges. This temptation and this fear compromise our powers, [and] divert our energies .... [F]eminism means finally that we renounce our obedience to the fathers and recognize that the world they have described is not the whole world. Masculine ideologies are the creation of masculine subjectivity; they are neither objective, nor value-free, nor inclusively \"human.\" Feminism implies that we recognize fully the inadequacy for us, the distortion, of male-created ideologies, and that we proceed to think, and act, out of that recognition.'

The Hidden Victims of Tort Reform: Women, Children, and the Elderly

Abstract: I have conducted empirical research from several states on how juries in medical malpractice and other tort suits allocate their damage awards between economic loss damages and noneconomic loss damages. I then compared cases in which men are the victims and cases in which women are the victims. This research demonstrates that while overall men tend to recover greater total damages, juries consistently award women more in noneconomic loss damages than men, and that the noneconomic portion of women's total damage awards is significantly greater than the percentage of men's tort recoveries attributable to noneconomic damages. Consequently, any cap on noneconomic loss damages will deprive women of a much greater proportion and amount of a jury award than men. Noneconomic loss damage caps therefore amount to a form of discrimination against women and contribute to unequal access to justice or fair compensation for women.

A Break in the Silence: Including Women's Issues in a Torts Course

Abstract: I teach torts, a mainstay of the first year law curriculum. Judging from the way most casebooks present this subject, one would think that notions about gender roles and gender stereotypes are irrelevant to the past development or current understanding of tort law. Economic theory, on the other hand, is presented as obviously relevant to the subject. So what possible insights could feminist theory offer to tort law? After all, the torts course is not just about women. But neither is feminist theory. I also teach a course which is commonly misunderstood as marginal: a course on feminist theory and the law. Yet I am struck by the extent to which this course grapples with all the fundamental issues of human experience: birth, death, love, hate, marriage, divorce, caring, violence, employment, unemployment, economic security, poverty, power, and powerlessness. Far from being marginal, feminist theory is concerned with the entire realm of law. Moreover, teaching feminist theory and the law has made me face the incompleteness of core ideas that fuel our conception of law-ideas such as objectivity, rationality, and neutrality. \"Objective\" rules are too often

The Hidden Victims of Tort Reform: Women, Children, and the Elderly

Abstract: I have conducted empirical research from several states on how juries in medical malpractice and other tort suits allocate their damage awards between economic loss damages and noneconomic loss damages. I then compared cases in which men are the victims and cases in which women are the victims. This research demonstrates that while overall men tend to recover greater total damages, juries consistently award women more in noneconomic loss damages than men, and that the noneconomic portion of women's total damage awards is significantly greater than the percentage of men's tort recoveries attributable to noneconomic damages. Consequently, any cap on noneconomic loss damages will deprive women of a much greater proportion and amount of a jury award than men. Noneconomic loss damage caps therefore amount to a form of discrimination against women and contribute to unequal access to justice or fair compensation for women.

Deconstructing Equality-Versus-Difference : or, The Uses of Poststructuralist Theory for Feminism

Abstract: That feminism needs theory goes without saying (perhaps because it has been said so often). What is not always clear is what that theory will do, although there are certain common assumptions I think we can find in a wide range of feminist writings. We need theory that can analyze the workings of patriarchy in all its manifestations – ideological, institutional, organizational, subjective – accounting not only for continuities but also for change over time. We need theory that will let us think in terms of pluralities and diversities rather than of unities and universals. We need theory that will break the conceptual hold, at least, of those long traditions of (Western) philosophy that have systematically and repeatedly construed the world hierarchically in terms of masculine universals and feminine specificities. We need theory that will enable us to articulate alternative ways of thinking about (and thus acting upon) gender without either simply reversing the old hierarchies or confirming them. And we need theory that will be useful and relevant for political practice. It seems to me that the body of theory referred to as poststructuralism best meets all these requirements. It is not by any means the only theory nor are its positions and formulations unique. In my own case, however, it was reading poststructuralist theory and arguing with literary scholars that provided the elements of clarification for which I was looking.

Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction

Abstract: Every person who reads this Article has an accent. Your accent carries the story of who you are-who first held you and talked to you when you were a child, where you have lived, your age, the schools you attended, the languages you know, your ethnicity, whom you admire, your loyalties, your profession, your class position: traces of your life and identity are woven into your pronunciation, your phrasing, your choice of words. Your self is inseparable from your accent.' Someone who tells you they don't like the way you speak is quite likely telling you that they don't like you. Every person has an accent-even those who do not communicate with voice.2 The deaf have an accent in the way they use American Sign Language. An observer familiar with deaf culture can identify Black signing, upper-class signing, \"hearie\" signing, regional signing, teenage signing, \"heavy\" signing,

The Mediation Alternative: Process Dangers for Women

Abstract: rules; the inclusion of emotions along with rational self-interest; and the introduction of self-determination in the place of an outside decisionmaker. Part III discusses the particular dangers to women of mandatory mediation's requirement of direct engagement with their adversary. Part IV suggests alternatives to a system of mandatory mediation. While the focus of my discussion is mandatory mediation, many of the observations in the Article also have implications for voluntary mediation, which in many cases also fails to fulfill its promise to be a gentler alternative to the adversarial system. I. THE RISE OF MANDATORY CUSTODY MEDIATION IN CALIFORNIA The movement for voluntary mediation of divorce disputes began several decades ago as lawyers and therapists offered to help their clients settle their cases in a nonadversarial manner.15 Some clients reported that, by meeting together with a third party to help facilitate their communication, they were able 13. At various points in this Article there are descriptions of mediation sessions, and of the perspectives of mediators and parties in court-ordered mediations, which are denoted by blocked italic text. Because the mediation process and settlements that flow from it are not public, there are no transcripts and only limited records of settlements available. The descriptions of mediation sessions are therefore based on actual cases which have been related to me by the participants themselves, though the names and identifying details have been changed. The descriptions of participants' perspectives on mediation are composites, drawn from my observation of many mediation sessions. One of the descriptions of a mediation session (that of Joe and Elaine, see infra text accompanying note 194) is also a composite, combining the details of two cases. 14. See Deis, California's Answer: Mandatory Mediation of Child Custody and Visitation Disputes, I OHIO ST. J. DIsPUTE RESOLUTION 149, 152 (1985) (understanding and analysis of California's mandatory mediation statutes important because many states expected to follow California's lead in this area, just as they did in area of no-fault divorce); Fineman, supra note 6, at 741 n. 59 (\"California was a pioneer in nofault legislation.\"); Folberg & Milne, The Theory and Practice of Divorce Mediation: An Overview, in DIVORCE MEDIATION, THEORY AND PRACTICE 3, 5 (1988) (court personnel providing conciliation services in California probably first to offer mediation services). Deis comments that \"approximately eighteen states are using mediation to resolve these [child custody and visitation] disputes.\" Deis, supra, at 171 (citing Jenkins, Divorce California Style, 9 STUDENT L. 30 (1981)). She continues: \"It is difficult to estimate how many other states allow mediation of child custody and visitation disputes because this has been accomplished in some states through a general provision giving judges the power to provide counseling or alternate means of decision making for the parties.\" Id. 15. Conversation with Gary Friedman, Center for the Development of Mediation in Law, Mill Valley, California (Dec. 14, 1988); see also 0. COOGLER, STRUCTURED MEDIATION IN DIVORCE SETTLEMENTS at xv (1978) (structured mediation process developed in mid-1970's); Folberg & Milne, supra note 14, at 5 (handful of attorneys began offering nonadversarial legal services in early 1970's). 19911 1551 The Yale Law Journal to reach agreements that met everyone's needs and leave their marriages without the acrimony and fear they had anticipated from the adversarial divorce

Sex Work/Sex Act: Law, Labor, and Desire in Constructions of Prostitution

Abstract: L'A. porte son attention sur la prostitution aux Etats-Unis. Il s'efforce de definir ce qu'il faut entendre par prostitution. Il examine les differents discours concernant la prostitution. Il evoque un mouvement social qui s'est developpe aux Etats-Unis en faveur de la defense des droits des prostituees. Il analyse le rapport entre criminalisation de la prostitution et developpement de la prostitution moderne