Perm preserves through transformation – the plan does nothing to dislodge gendered inequality at the heart of existing tort doctrine.
Martha CHAMALLAS Robert J. Lynn Chair in Law at Ohio State University AND Lucinda FINLEY Raichle Professor of Law at the University of Buffalo, SUNY ’20 in Feminist Judgments: Rewritten Tort Opinions eds. Martha Chamallas & Lucinda Finley p. 11-12
In a variety of ways, the opinions in this volume show that despite the facial neutrality of contemporary tort law, gender, race, and the personal identity of plaintiffs still affect the availability of tort claims, the prospects for liability and the measure of damages. Although doctrines change, the updated versions often reproduce gender disadvantages and other inequalities, even if in softer, less explicit forms. Legal historian Reva Siegel has described this phenomenon as “preservation through transformation,” a process by which a basic hierarchy may remain intact even though the legal rules and legal rhetoric surrounding it undergo substantial change.29 In fact, the basic hierarchy is preserved precisely because it has been updated to fit the sensibilities of the time. In law, a regime can soften, admitting more exceptions or providing somewhat more protection to a vulnerable group, without dislodging the basic power structure.