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Why did she not, as a feminist, write a contract casebook? I have every confidence that feminism, in its most general form, has engendered social and cultural shifts, which have inspired major developments in English law. I have no doubt that feminism has brought about major legal developments in rape law and other areas in what might be described as "the spirit of the times".

I cannot digress into the innominate effects of feminism. The subject is too large. I merely give a topical example:. Baroness Amos, the new International Development Secretary, began her career as a radical researcher into cultural studies at Birmingham University. She brought her cerebral approach to the Equal Opportunities Commission, where her analysis of discrimination made lasting changes to millions of people's working lives. I cannot, also, criticise feminist legal scholarship for aiming to achieve certain goals.

I have already mentioned the benefits of raising consciousness, demonstrating that the law is not gender neutral and insisting that female voices be heard. What I object to is the claim that feminist legal writings have brought about major developments. To use one example in Conaghan's Reassessment:. In the context of law, in particular, shifting the spotlight onto women has resulted in significant political gains … Recognition of the vulnerable position of wives and homemakers has produced a series of adjustments to property and equity principles in the context of the 'marital' home, encroaching even on the boundaries of surety and banking law.

It is now common practice for judges to cite academic works. I do not think that it is simplistic to measure impact by looking for direct indications of influence or source. Examples of judicial citation of academic works now abound and the old taboo of citing only dead authors has gone. Recent Equity and Trusts cases demonstrate this overwhelmingly.

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No direct evidence in the criminalisation of statutory rape in R v. R [60] , in the recognition of battered wives syndrome in R v. Thornton [61] and R v. Ahluwlia [62] and in the developments as to division of assets on divorce in White v. White [63] and Lambert v. Lambert [64]. As to surety and banking law, I have written extensively on undue influence [65] and have closely followed developments from Barclays Bank v.

O'Brien [66] to Royal Bank of Scotland v.

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Etridge No. There is not one shred of evidence that any female writings of any kind, including Fehlberg's impressive empirical study [68] , influenced the extended protection given to women who stand as surety for male indebtedness. For those unfamiliar with Royal Bank of Scotland v. Conaghan's suggestion that the recognition of the vulnerable position of wives and homemakers has produced a series of adjustment to property and equity principles is not borne out in the context of cohabitation.

A major re-definition of the law would occur if the law relating to property rights between cohabitants was to be reformed. The effect of academic writings on the law cannot nowadays be underestimated. National Westminster Bank plc then unreported. Lim writes:. It was chosen for three reasons…. Not surprisingly it appears to have become the practice for writers, specifically from feminist standpoints, to analyse the role of equity within the fields of de facto families.

It may be worth breaking the mould. The most potent question here is why break the mould when such little pragmatic reform has been achieved? The mould of writing on this subject must not be broken.

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It needs to be strengthened, mainstreamed and not marginalised, pragmatic and not theoretical and, above all, concerned "with the reality of women's lives" [71] and with counteracting women's disadvantage. I do not, however, believe that any objective will be achieved if female academic lawyers seek to stereotype males or male judicial decisions in a way that they have perceived themselves to be stereotyped and I am afraid that this has happened.

The power, and the exposition of American law is powerful, of VanderVelde's article [72] on the implication of the importation of the decision in Lumley v. Wagner [73] into American law is fundamentally undermined by the bald assertion that the origins of the decision were gendered. An exhaustive, detailed, historical, contextual and principled approach to this adjudication by Waddams [74] would, in my opinion, convince most readers otherwise.

It is important to tell the whole story, to be accurate and not to be selective in order to serve a polemic. I would query the interpretation by de Than [75] of two cases, Wroth v. Tyler [76] and Warner Brothers v. Nelson [77]. Of the former, de Than argues that the image of the wife which emerges is that of a stubborn and duplicitous woman who would do anything not to move home. Well she was. She allowed prospective purchasers to view her house and stood by whilst her husband entered into a contract of sale with them. But she did not want to move so she secretly consulted solicitors and notice of her right to occupation was duly entered under the Land Registration Act She deceived her husband, even going so far as to write to his solicitors behind his back.

She deceived the young couple, who wanted to buy the bungalow and caused them immense stress and suffering. Even when Megarry J. As Megarry J. Under the unusual circumstances, Megarry J. In the latter case, Warner Brothers v. Nelson [78] de Than suggests that the actress, Bette Davis's 'wilfulness' and obvious capability worked against her in the eyes of the court.

Branson J. I think it is not inappropriate to refer to the fact that, in the contract between the parties, in clause 22, there is a formal admission by the defendant that her services, being "of a special, unique, extraordinary and intellectual character" gives them a particular value the loss of which cannot be reasonably or adequately compensated in damages: and that a breach may "cost the producer great and irreparable injury and damage," and the artiste expressly agrees that the producer shall be entitled to the remedy of injunction. There is of course, always room for different interpretations.

National Westminster Bank then unreported does, however, cause me grave concern. The facts of the case are extremely complicated and it is sufficient to say that a claim of breach of trust in respect of investment duty against the bank failed. Aside from accusing Lord Hoffmann of "bordering on misogyny", a view which is not wholly consistent with other evidence [81] , Lim positively seems to misrepresent and distort in an attempt to convince the reader that "Through the tales of Hoffmann, woman is firmly located as an outsider and a hysteric excluded from the realm of male rationality.

I am not at all convinced that, in any of the three cases discussed here, different decisions would have been made had the factual matrices involved men instead of women. I have concentrated in this section on Equity and Trusts cases and I wish to express some tentative conclusions as to why feminist writers have failed to challenge the dominant male knowledge structures in Equity and Trusts.

First, as above, there seems little point in interpreting cases in a gendered way simply to stereotype our male lawmakers. Second, as I have argued above, it is not an ironic diversion to recognise that, in many of our Equity and Trusts cases, women do fit stereotypical roles. The way to re-define the existence of women is by pragmatic development and reform. As I have already stated, Royal Bank of Scotland v. Etridge N. That should redefine women in our textbooks and casebooks.


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That brings me to back to the thrust of my argument. I would like to see more female academics writing textbooks and casebooks and engaging more rather than less in mainstream issues. My research for this article has radically changed my perception of textbooks and casebooks. Frug's account [86] , in particular, has caused me to re-think my putative intention of not producing a fifth edition of my own Equity and Trusts textbook. But my research in general has persuaded me that textbooks and casebooks are an important forum for women's voices, as are journal articles.

This brings me to a final point. I suspect that English feminist jurisprudence is too theoretized and introspective. I give an example of what I mean by this above, in the context of Gross's Canadian article [87]. One is tempted to argue that English feminist jurisprudence has become centred in and focused on the academia. The ideological impetus to denounce the male dominance of the law has led to the misdescription of the legal success of feminism and to a failure to address viable reforms of doctrine.

English feminist jurisprudence needs to be more pragmatic and looking outward towards the daily reality of women's lives. It needs to embrace more actively the concept of social politics.

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There needs to be more focus on pragmatic development. I have used the word pragmatic throughout this article in the ordinary meaning of the word and not as in the legal connotation enunciated by Atiyah. Other feminists have forsaken demanding and fighting for political change and instead have become academics who fail to connect with the gross inequalities which working class women suffer.

It seems pretty obvious that demands for more childcare, better pay, better jobs for women, etc will not be met by these feminists. Ultimately, I hope that the purpose of writing this article, which I fully accept is provocative, will, at the very least, encourage debate amongst feminine scholars as to the accuracy of this quotation. I would like to thank many colleagues for their suggestions re this article.

Special thanks go to Tony Oakley, for his critical reading and pedantic proof reading of my drafts, to Emily Allbon, the Law Librarian at City University, who has given me endless help and advice on electronic research and to Peter Goodrich for providing me with thorough and incisive comments.

Some of the expressions used in this article derive directly from Peter's comments because they are more erudite and more accurate than some of my original expressions. J One can only speculate as to how much this seemingly irrelevant exercise has cost the public purse. We use a second-class service for most items and Spring Global Mail for international orders. List this Seller's Books. Payment Methods accepted by seller. Stock Image. Published by Routledge-Cavendish, Used Condition: Good.

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