This essay, a response piece to Anita Bernstein’s thought-provoking book The Common Law Inside the Female Body, examines the powerful tool of the common law and the role that judges play in wielding it. I begin by drawing on my twenty-four years of teaching and looking at the questions that I, and my students, grapple with every year while studying the common law: Do the uncoordinated actions of individual judges, juries, and lawyers and parties generate an efficient legal system? And does that system result in some version of justice for most of the parties, most of the time, including women? Bernstein’s book answers these questions in the affirmative and I agree. Utilizing the lens of legal realism, this essay argues that judges, wielding the common law, ultimately strive to, and in fact their fundamental role is to promote fairness. I examine why the “human” element of judges is so important to the promotion of fairness and elimination of bias, as evidenced by recent failures by Google and Amazon to eliminate bias from their algorithms. Although both Bernstein and I acknowledge that judges have sometimes failed to promote the common law’s true purpose, one can find, even in those “failings” the creation of negative liberties for women. Used creatively and appropriately, the common law is a critical tool for promoting justice.
Ann Bartow, The Female Legal Realist Inside the Common Law, 61 B.C.L. Rev. E.Supp. I.-82 (2020), https://lawdigitalcommons.bc.edu/bclr/vol61/iss9/26