Linda C. McClain (born 1958) is the Robert B. Kent Professor of Law at Boston University School of Law. Her scholarship focuses largely on the roles of individuals and families in the democratic process. Her work crosses various areas of law, including family law, gender equality, and feminist legal theory. McClain is noted for her liberal feminist approach to major social, legal, and political questions. Education
McClain graduated with a Bachelor of Arts in Religion and Government from Oberlin College in 1980. She continued her education at the University of Chicago Divinity School, graduating with a master's degree in religious studies. In 1985, McClain graduated cum laude from Georgetown University Law Center, where she received her Juris Doctor. While there, she was an editor for The Georgetown Law Journal.
Career McClain was admitted to the New York State Bar Association in 1986. Upon graduation, McClain worked as an attorney in the litigation department at Cravath, Swaine & Moore and earned her LL.M. from New York University School of Law in 1991.
In 1993, McClain served as a visiting associate professor at the University of Virginia School of Law, where she taught courses on feminist legal theory and jurisprudence. From 1999 to 2000, she was a faculty fellow at the Harvard University Center for Ethics and the Professions. She served as a visiting professor at Harvard Law School in the winter of 2000, teaching a course on Feminist Jurisprudence.
In 2004, she was appointed the Rivkin Radler Distinguished Professor of Law at the Maurice A. Deane School of Law at Hofstra University. While at Hofstra Law, McClain also served as the co-director of the Institute for the Study of Gender, Law, and Policy from 2005 to 2007.
In spring 2006, McClain worked as a visiting professor at University of Pennsylvania Law School, teaching courses on family law and feminist legal theory.
McClain began teaching at Boston University School of Law in 2007. She also teaches at Boston University College of Arts & Sciences, in the Women's, Gender, & Sexuality Studies Program.
She would later serve as a Laurence S. Rockefeller Fellow at Princeton University’s Center for Human Value from 2016 to 2017.
Memberships
She is a member of the American Law Institute, where she participates in the Members Consultative Group for the Restatement of the Law, Children and the Law. She is also involved with the Council on Contemporary Families, the American Political Science Association, and the American Society for Political and Legal Philosophy.
McClain previously served as chair of the Association of American Law Schools Section on Family and Juvenile Law and on the advisory board for The Feminist Sexual Ethics Project at Brandeis University. She has appeared on C-SPAN and Minnesota Public Radio.
Scholarship
Constitutional Theory McClain co-authored work with her husband, James E. Fleming, focusing on traditional liberal rights. In Ordered Liberty: Rights, Responsibilities, and Virtues, they propose a middle ground between liberal, civic republican, communitarian, and progressive approaches. They suggest that government can provide information and support for all options, allowing individuals to reflect and choose.
Some scholars note that differently situated individuals may interpret the same government information differently. They also point out that if government intervention is needed to create conditions for autonomous choice (such as "material and social preconditions for women's equal citizenship"), the government may need to limit others' autonomy. (Quoting James E. Fleming & Linda McClain, Ordered Liberty: Rights, Responsibilities, and Virtues 79 (2012)). McClain and Fleming's approach assumes individuals will choose to act in society's best interests, but they acknowledge that rights should have limits when stronger competing interests exist. McClain and Fleming examine a line of Supreme Court abortion cases and noted the balancing of individual rights and state interests taking place, not the application of strict scrutiny, intermediate scrutiny, or the rational basis test. (Reviewing James E. Fleming & Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013). When the public is reasonably divided on whether an action, for example, abortion, should be permissible, McClain and Fleming argue that it should be left to individual choice, and McClain has explained that an individual right is necessary to give the individual space to make the important decision autonomously. (Citing Linda M. McClain, The Poverty of Privacy?, 3 Columbia Journal of Gender & Law 119, 129 (1992)). This line of reasoning sees the Constitution as a living document, changing with the needs of society. Tolerance of different approaches, which McClain has argued should be "toleration as respect" as opposed to grudging tolerance, (Citing Linda C. McClain, Toleration, Autonomy, and Governmental Promotion of Good Lives: Beyond "Empty" Toleration to Toleration as Respect, 59 Ohio St. L.J. 19, 23-23 (1998)). should only be disrupted if a policy is supported by the best reasons provided through public debate. Individuals engaging in public debate in a "deliberative democracy" (Citing James E. Fleming & Linda C. McClain, In Search of the Substantive Republic, 76 Tex. L. Rev. 509, 511 (1997)). should not be focused on imposing their view of what is good on everyone else, but instead seek to achieve a common good. (Citing Linda C. McClain & James E. Fleming, Some Questions for Civil Society-Revivalists, 75 Chi.-Kent L. Rev. 301, 346 (2000)). Critics of tolerance argue that it does not provide sufficient guidance and creates tacit approval of actions that have not been considered by society. When discussing constitutional rights, however, freedom is defined as freedom from government action; private actors are still free to disapprove of others' actions. (Reviewing Ordered Liberty: Rights, Responsibilities, and Virtues).
McClain has noted that public debate can identify the best societal values for democracy and that these values can then be used to comprise civics education required by the state, even if that requirement conflicts with the religious liberty interests of groups (e.g., homeschoolers). One counterargument is whether the government can be trusted to teach these values, especially when they question the wisdom of those in power and the laws as written.
McClain and Fleming have also argued that, when the consequences of not having a choice would negatively impact individuals in a personal way, denying individuals that choice would create moral harm.(Citing James E. Fleming and Linda C. McClain, "The Right to Privacy in Sandel's Procedural Republic," in Debating Democracy's Discontent: Essays on American Politics, Law, and Public Philosophy 249, 254 (eds. Anita L. Allen & Milton C. Regan, Jr. 1998)). Prior to the legalization of same-sex marriage in the United States, McClain argued that failure to recognize same-sex marriages was disrespectful to same-sex couples and prevented them from fully functioning in democratic life. (Citing Linda McClain, Toleration, Autonomy, and Governmental Promotion of Good Lives: Beyond "Empty" Toleration to Toleration as Respect 59 Ohio St. L.J. 19, 121-22 (1998)). Although Fleming and McClain claimed to be advocating political liberalism, critics felt examples in Ordered Liberty pushed beyond the natural understanding of citizenship and into the traditionally more private sphere associated with comprehensive liberalism. Others argued that the examples chosen, primarily in family law and equality cases, lent themselves to autonomy as self-government argument. It is harder to apply the same theory to other rights such as free speech cases involving offensive and disrespectful language or zealous protection of a criminal defendant's procedural rights. Arguments regarding individual rights and autonomy are also difficult to apply in a post Citizens United world where organizations possess constitutional rights.
McClain has also defended liberalism against feminist critique that encouraging autonomy leads to socially disconnected individuals, (Citing Linda C. McClain, 'Atomistic Man' Revisited: Liberalism, Connection, and Feminist Jurisprudence, 65 S. Cal. L. Rev. 1171, 1173-76 (1992)). arguing that, although rights necessarily create some protective space between individuals, (Citing Linda C. McClain, "Atomistic Man" Revisited: Liberalism, Connection, and Feminist Jurisprudence, 65 S. Cal. L. Rev. 1171 (1992)). liberal theory also allows for inter-dependency that can result in increased individual self-worth and respect amongst individuals.
Religious Liberty When different religions proscribe rights and responsibilities associated with marriage, McClain has argued that these religious communities be exempt from secular domestic relations law instead of trying to fit the religious law within state law. (Citing McClain, Linda C. 2013. "Marriage Pluralism, Family Law Jurisdiction, and Sex Equality in the United States." In Gender, Religion, & Family Law: Theorizing Conflicts Between Women's Rights and Cultural Traditions, eds. Lisa Fishbayn Joffe and Sylvia Neil, 76-115. Waltham, MA: Brandeis University Press).
Reproductive Rights McClain has examined the language surrounding the decision to have an abortion in legal decisions, noting that when the U.S. Supreme Court listed non-life-threatening reasons for abortion, such as convenience and not wanting children, it implied that the pregnant woman's desires outweighed the fetus's possible life.(citing Linda C. McClain, "Equality, Oppression, and Abortion: Women Who Oppose Abortion Rights in the Name of Feminism," in Susan Ostrov Weisser and Jennifer Fleischner, eds., Feminist Nightmares, Women at Odd: Feminism and the Problem of Sisterhood (New York: New York University Press, 1994), 159, 168). McClain has also written about how abortion opponents describe the decision to have an abortion as an "irresponsible" choice.(Citing Linda C. McClain, Rights and Irresponsibility, 43 Duke L.J. 989 (1994)). McClain rejects this idea, instead saying that many women choose to have an abortion because they believe it would be wrong to bring a child into their current social and economic situation. (Citing Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility 250 (2006)). McClain believes women should have the right to choose abortion in these instances, and she does not believe government should encourage women to refrain from sexual intercourse if they are not prepared to provide for any resulting children. She has examined the description of men as unable to control their sexual urges as a cultural excuse of men's conduct, (Citing Linda C. McClain, "Irresponsible" Reproduction, 47 Hastings L.J. 339, 422 (1996)). and rejects that women should be responsible for ensuring men commit to any children resulting from sexual activity by requiring the couple marry before having sex. (Citing Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility 258, 272 (2006)). Don Browning counters that the government encouragement of sexual activity within marriage does not have to burden women with that responsibility, but can move it to the institution of marriage via societal expectations that are placed on both men. McClain, however, believes that American legal and cultural changes have rendered the channeling of sex into marriage obsolete. (Citing Linda McClain, Love, Marriage, and the Baby Carriage: Revisiting the Channeling Function of Family Law, 28 Cardozo L. Rev. 2133 (2007)).