Persuasive or Pipe Dream? The Potential Influence of the Feminist Judgments Project on Future Judical Decision Making

• Published in: British journal of American legal studies 2020-08, Vol.9 (2), p.323-366
• Main Author: Webber Nuñez, Kate
• Format: Article
• Language: English
• Subjects: Feminism and Political Science; Feminist Judgments Project; Historical Institutionalism; Judicial Decision Making
• ISSN: 2049-4092; 2049-4092
• DOI: 10.2478/bjals-2020-0018

The Feminist Judgments Project (“FJP” or the “Project”) rewrites existing judicial opinions from a feminist perspective. This article explores whether and how the FJP's alternative jurisprudence can influence future legal decisions. The FJP seeks to change the law by revealing unconscious bias and opening judicial minds to previously unknown perspectives - a method that draws on psychological theories of decision making such as cultural cognition. This article takes a different approach and evaluates the FJP using theories from political science. In light of the increasingly conservative judiciary and the Republican administration, the attitudinal and strategic theories of decision making would give the FJP little prospect of actually influencing the law. Thus, this article focuses on historical institutionalism to present a theoretical explanation for why and how the FJP's re-envisioned law could possibly persuade the judiciary. Specifically, the article examines the degree to which the FJP draws on social facts highlighted by the #MeToo and LGBTQ rights movements and whether the Project thereby creates the conditions for social construction and resultant legal change. It also uses theories on displacement to present a critique of the FJP's more radical re-writes and points to the more moderate approach of ideational salience amplification as effective. Ultimately, it concludes that the FJP's path of persuasion is somewhat narrow and limited, but possible.