Re-Reading Anita Bernstein's The Common Law Inside the Female Body from the Bottom of the Well: Analysis of the Central Park Five, Border Drownings, the Kavanaugh Confirmation, and the Coronavirus

Abstract

This Article provides a critique of the common law based on its impact on “the legal other” or what the late Professor Derrick Bell viewed as the faces from the bottom of the well. Professor Anita Bernstein notes common law’s liberatory capacity. While this interpretation of the common law is true to a certain extent, this reading can lead to an underestimation of the common law’s limitations. In looking at the case involving the Central Park Five, I argue that feminist jurisprudence can have an unintended disparate impact on vulnerable populations. Examples of migrant detention facilities and precarious border crossings also illustrate how inhumane conditions emerge in response to the desire to protect white female spaces. In other words, the law functions to protect white women as an extension of white male property and privilege. This Article argues that law enforcement arms and the judicial system operate in hegemonic unison to protect the interests of elite institutions and those in power by using all tools at their disposal, including the common law inside the female body. Meanwhile, even white women are disempowered when their interests do not align with the goals of white male heteropatriachy as evidenced by the confirmation hearings of Justice Kavanaugh. The coronavirus pandemic accentuates these disparities in the feminist jurisprudence.