Document Type

Article

Publication Date

1994

Abstract

Day after day, across this country, ordinary people are summoned to court for a selection process that ultimately leaves them in a room deciding, with other jurors, whether a criminal defendant should be killed. The task handed to these jurors is an awesome, personal, moral decision, encased within the complex legal standards and procedures that constitute modern capital jurisprudence. The doctrine that created and sustains this moment of conscience reflects an ongoing struggle of rule against uncertainty, reason against emotion, justice against mercy, and thus, at one level, male against female. Capital jurisprudence -- the law for deciding whether to kill -- is also a hidden battleground of gender.

As participants in an entrenched system of legal thought, we organize our thinking about law within this series of dichotomies, which include reason versus emotion, distance versus connection, and rule versus context. The dichotomous choices are not complementary, but rather conflict with and challenge each other. Those dualisms have a hierarchy; maleness is associated with the top end of the hierarchy, female with the bottom. Thus law is a gendered structure of power and meaning.

I test these premises by examining one awesome moment in law, the decision of a jury to punish someone by death. The power of the law is manifest in this moment. If gendered structures in fact operate within apparently neutral legal principles and procedures, they will be deeply at work in the legal procedures that give the ultimate task -- deciding life or death -- to a person, a juror.

Publication Citation

1994 Wis. L. Rev. 1345 (1994).

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