In New Book Professor Anita Bernstein Examines how Common Law Can Advance Gender Justice

Professor Anita Bernstein, a nationally recognized authority on tort law, feminist jurisprudence, professional responsibility and products liability, has authored a new book, The Common Law Inside the Female Body (Cambridge University Press 2019). Bernstein breaks new ground with her in-depth exploration of U.S. common law through history—focusing on crimes, contracts, torts and property—as a fertile source for strengthening women’s rights and freedoms. “Far from being inferior to statutes and treaties and the U.S. Constitution, the common law advances gender justice,” Bernstein writes.

In her book, Bernstein turns the popular perception of the common law as a hoary enclave of jurisprudence supporting conservatism, oppression, and the patriarchy, on its head. Because the common law supports beneficial transactions and relationships by maintaining safeguards and threats against them, “negative liberty” applies equally to women, and, according to the author, “Women too may say no to what they don’t want.” Bernstein makes the evocative and persuasive case that women possess the right via common law to refuse unprotected and unwanted sex, unplanned pregnancies, and other unwelcome invasions. Bernstein opens the door for feminist lawyers, litigants, scholars, and jurists to use the common law, in addition to legislation, as powerful leverage in realizing gender equity.

In March, Bernstein spoke in Philadelphia at the National Constitution Center’s program, “Free Speech on Campus: Where Should Universities Draw the Line?” In the panel discussion on “Professors and Free Speech,” which explored balancing free speech and inclusion interests in the classroom and the impact of academic freedom policies on professor speech, Bernstein said, “What we need to be is disturbed, and that applies to all of us.” Prior to the event, Bernstein published a preview op-ed in the Philadelphia Inquirer, arguing that, rather than being constrained, tenured university professors are protected in their speech and need more “intellectual discomfort, challenge, and pushback.”

Bernstein’s scholarship has been cited in decisional law by federal courts (trial and appellate) and the supreme courts of Pennsylvania and Texas. She has been recognized as one of the most highly cited scholars in the field of torts and products liability, according to Brian Leiter's Law School Reports, an influential legal blog. Bernstein’s writings have appeared in the law reviews of dozens of law schools, including Harvard, Yale, Columbia, California, Michigan, Cornell, Duke, Texas, and Vanderbilt. She is a member of the American Law Institute and a past chair of the Association of American Law Schools Executive Committee on Torts and Compensation Systems. The author of several books addressing torts, products liability, and the law of marriage, Bernstein’s wide-ranging interests extend to microfinance, diversity as a rationale for affirmative action, and comparative and international law.

Watch the panel discussion here.

Read the op-ed here.