Linda C. McClain

Biography

Linda C. McClain is known for her work in family law, gender and law, and feminist legal theory. Her most recent book, Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020), argues that, although denouncing and preventing bigotry is a shared political value with a long history, people disagree over who is a bigot and what makes a belief, attitude, or action bigoted. This is evident from the rejoinder that calling out bigotry is intolerant political correctness, even bigotry itself. The book addresses puzzles about bigotry by tracing the rhetoric of bigotry and conscience across a range of debates relating to marriage and antidiscrimination law. In the words of one reviewer, “this is required reading for anyone who wants to understand our polarized society and how we got here.” Professor McClain is the author of several other books (described below) and numerous scholarly articles and book chapters. Her scholarship addresses the respective roles of families, other institutions of civil society, and of government in fostering citizens’ capacities for democratic and personal self-government. She has engaged with prominent communitarian, civic republican and feminist critiques of liberal legal and political theory and offered a reconstructive liberal feminist approach to such matters as privacy, family and marriage, reproductive issues and welfare law. Her work also addresses sex equality as a legal and constitutional commitment and public value, the responsibility of government to promote equality, and societal tensions over equality and its relationship to other values. Professor McClain has also written and spoken about law and literature, focusing on themes of household and political governance, marriage, and singleness in 19^th century fiction.

Professor McClain is a former Laurence S. Rockefeller Fellow at Princeton University’s University Center for Human Values and a former faculty fellow at the Harvard University Center for Ethics and the Professions (now the Safra Center). A member of the American Law Institute, she serves on the Executive Committee for the AALS Sections on Family and Juvenile Law and on Women in Legal Education. She is a member of the Council on Contemporary Families, the American Political Science Association, and the American Society for Political and Legal Philosophy. Professor McClain has been a visiting professor of law at Harvard University, the University of Pennsylvania, and the University of Virginia. Before joining the faculty of Boston University School of Law in fall 2007, Professor McClain was the Rivkin Radler Distinguished Professor of Law at Hofstra Law School, where she was also co-director of the Institute for the Study of Gender, Law, and Policy. Prior to entering the legal academy, she practiced litigation at Cravath, Swaine & Moore. She enjoys playing classical piano.

McClain has organized interdisciplinary conferences at BU Law, published as symposia in Boston University Law Review, including: The Civil Rights Act of 1964 at 50: Past, Present, and Future, and Evaluating Claims about ‘the End of Men’: Legal and Other Perspectives. She frequently speaks to the press on issues concerning family law and marriage.

About Professor McClain’s Books

Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) traces the rhetoric of bigotry and conscience in controversies over marriage – interfaith, interracial and same-sex—and civil rights laws– both the landmark Civil Rights Act of 1964 and modern state laws protecting LGBTQ persons against discrimination. Read an excerpt here. The book shows recurring patterns of arguments in these social, political, and constitutional battles and suggests lessons learned from such study about bigotry’s puzzles. For example:

denouncing and preventing bigotry in all its forms is a shared political value with a long history, but people disagree over who is a bigot and what makes a belief, attitude, or action bigoted. A frequent rejoinder to calling out bigotry is that the charge reflects intolerant political correctness, even bigotry itself. People also disagree over what it means to be “on the wrong side of history” and how present forms of discrimination resemble or differ from past forms.  McClain argues that understandings of bigotry have both a backward- and forward-looking dimension: people make new judgments about forms of “bigotry” based on consensus on past forms and reason from the past to come to new understandings of injustice and justice.

“Can We Talk About Racism” Book Discussion

Advance praise and other reviews

In the Media

• Painting Constitutional Law, This AALS panel discussed the recent book Painting Constitutional Law, a collection of ten essays and accompanying paintings illustrating important Supreme Court Constitutional cases that concerned the State of Florida.
• Social Distancing and the Epidemic of Prejudice, an op-ed in The Hill by Professor McClain on topics relevant to the book.
• Why Talk about Bad Actors versus Good People Misses the Problem of Systemic Racism, an op-ed by Professor McClain in OUPblog, a publication of Oxford University Press.
• Professor McClain speaks with BU Today about why she wrote the book and its relevance to current events.

Book symposia on Who’s the Bigot?

• Balkinization, June 2020, with commentary by Professors Aziza Ahmed, Dale Carpenter, Imer Flores, Cathleen Kaveny, Randall Kennedy, and Andrew Koppelman, and a response by Professor McClain
• Boston University Law Review, December 2019, with commentary by Professors John Corvino, Melissa Murray, Sonu Bedi, Douglas NeJaime, James E. Fleming, and Imer Flores, and a response by Professor McClain

Contemporary Family Law (West Academic, 5th ed. 2019), with Douglas E. Abrams, Naomi R. Cahn, and Catherine J. Ross, is a popular casebook used in family law courses. It engages students with significant changes in the American family and the corresponding evolution of family law and policy. It introduces the myriad issues central to contemporary family law practice and to a lawyer’s ethical and professional responsibilities.

Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013), co-authored with James E. Fleming, develops and defends a civic and constitutional liberalism that takes responsibilities and virtues—as well as rights—seriously. It offers a conception of “ordered liberty” that appreciates the value of diversity in our morally pluralistic constitutional democracy and answers various charges that the US constitutional system, in recent years, exalts individual rights over responsibilities, virtues, and the common good. The book uses the battle over same-sex marriage as a primary illustration and argues that a conception of “ordered liberty” supports marriage equality. Other examples include clashes between First Amendment freedoms (of association and religion) and antidiscrimination law, the education of children, and reproductive freedom. In a December 2013 New Books in Public Policy podcast and a March 2013 Concurring Opinions online symposium, Fleming and McClain discussed Ordered Liberty and how its framework addresses various criticisms of liberalism and liberal rights.

McClain’s first book, The Place of Families: Fostering Capacity, Equality, and Responsibility(Harvard University Press, 2006) offers a liberal and feminist perspective on the relationship between family life and the polity and on a number of contested issues of family law and policy, including governmental promotion of marriage, the denial of marriage to same-sex couples, welfare policy, and constitutional rights to reproductive freedom. The Place of Families has been described as “the most careful and comprehensive defense to date of the progressive liberal feminist position on the civic role of families” and “a ‘must read’ for anyone interested in the future of American families and family law.”

Professor McClain’s interdisciplinary volume, What Is Parenthood?: Contemporary Debates about the Family (NYU Press, 2013), written with Daniel Cere, examines the extraordinary changes in patterns of family life—and family law—that have dramatically altered the boundaries of parenthood and opened up numerous questions about debates. How should society define, regulate, and support parenthood? The book brings legal scholars into conversation with scholars from anthropology, globalization and immigration studies, medicine, psychology, religious ethics, and sociology to consider several questions about parenthood, including questions about institutions, rights, attachment, gender equality and difference, and transnational parenting. Reviewers describe the book as “a much needed model for how to bring civility and reason into the culture wars” and “an invaluable resource for anyone who wishes to think critically about modern parenthood and what the government can and should do to improve families.”

Gender Equality: Dimensions of Women’s Equal Citizenship (Cambridge University Press, 2009; paperback, 2012), co-edited with Joanna Grossman, examines the problem of the continuing gap between formal commitments to gender equality and the equal citizenship of women and men and the persistence of gender inequality, and it develops strategies for closing that gap. The book has been called “essential reading for those concerned with gender equality and citizenship across myriad disciplines” and “an outstanding collection” that “both illuminates and complicates a range of gender justice problems in intimate and public arenas within and across national boundaries.”