Law's Nobility

Abstract

In the epigram to her most important book, Catharine MacKinnon sought to "invent a new plot" with respect to the ways men and women negotiate (or not) the terms of their planetary cohabitation.' Through historically momentous scholarship and national and international legal advocacy spanning a thirty year career in public life, she has largely succeeded in doing so. Most visibly, from within law's perspective, MacKinnon invented a "new plot" by fundamentally restructuring our civil rights law, and she did so by reconceiving the ideal of equality that is at that law's heart. As is now well recognized, she did so in a two step argument: She first exposed the relative emptiness of a "formal" understanding of the ideal of equality that seeks solely to rationalize the treatment of men and "similarly situated" women-an approach which, virtually by definition, does little but provide a modest boost for women who are already relatively well-off. She then provided an alternative, "substantive" or "anti-subordinationist" account that sought to strengthen the power of the most disadvantaged women-and to whom, for that very reason, no formal male equivalent can be found. The critique and reconstruction of our shared ideal of equality has proven sound not only for women, but also for other groups on a similar legal quest. More concretely, MacKinnon's critique sustained the development of a cause of action sounding in equality law for what had previously been regarded as, at most, tortious private wrongs, i.e., work-based sexually harassing behavior.