Linda McClain

McClain graduated with a Bachelor of Arts in Religion from Oberlin College in 1980.{{Cite web |title=Linda C. McClain {{!}} School of Law |url=https://www.bu.edu/law/profile/linda-c-mcclain/ |access-date=2025-02-21 |website=www.bu.edu}} She continued her education at the University of Chicago Divinity School, graduating with a master's degree in religious studies.{{cite news |date=28 June 1992 |title=Weddings; Linda McClain, James Fleming |url=https://www.nytimes.com/1992/06/28/style/weddings-linda-mcclain-james-fleming.html |accessdate=25 November 2019 |work=The New York Times}} In 1985, McClain received her Juris Doctor (J.D.) degree from Georgetown University Law Center, where she was an editor for The Georgetown Law Journal.

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.{{cite web |title=Linda C. McClain |url=http://www.bu.edu/law/profile/linda-c-mcclain/ |website=Boston University School of Law |accessdate=11 September 2019}} In 2004, she was appointed the Rivkin Radler Distinguished Professor of Law at the Maurice A. Deane School of Law at Hofstra University.{{Cite journal |last=Minow |first=Martha |date=2005 |title=Fostering Capacity, Equality, and Responsibility (and Single-Sex Education): In Honor of Linda McClain |url=https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2349&context=hlr |journal=Hofstra Law Review |volume=33 |issue=3 |pages=815}} While at Hofstra, McClain was also co-director of the Institute for the Study of Gender, Law, and Policy from 2005-2007.

McClain started teaching at Boston University School of Law in 2007. She also teaches in the Boston University College of Arts & Sciences in the Women's, Gender, & Sexuality Studies Program.

She is a member of the American Law Institute, where she works in the Members Consultative Group for the Restatement of the Law, Children and the Law.{{cite web |title=Restatement of the Law, Children and the Law: Participants |url=https://www.ali.org/projects/show/children-and-law/#_participants |website=The American Law Institute |accessdate=20 September 2019}} She is also involved in the Council on Contemporary Families, the American Political Science Association, and the American Society for Political and Legal Philosophy.

McClain has previously served as the 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.{{cite web |title=Advisory Board |url=https://www.brandeis.edu/projects/fse/about/board.html |website=The Feminist Sexual Ethics Project |accessdate=13 September 2019}} She has appeared on C-SPAN{{cite web |title=Linda C. McClain |url=https://www.c-span.org/person/?lindamcclain |website=C-SPAN |accessdate=13 September 2019}} and Minnesota Public Radio.{{cite news |last1=Miller |first1=Kerri |title=Analysis: Supreme Court Declares Same-Sex Marriage Legal in all 50 States |url=https://www.mprnews.org/story/2015/06/26/npr-analysis-supreme-court-declares-samesex-marriage-legal-in-all-50-states |accessdate=20 September 2019 |work=MPR News |publisher=Minnesota Public Radio |date=26 June 2015}}

McClain was admitted to the Bar in New York in 1986.{{Cite web |title=https://iapps.courts.state.ny.us/attorneyservices/wicket/page/SearchResultsPage?2 |url=https://iapps.courts.state.ny.us/attorneyservices/wicket/page/SearchResultsPage?2 |archive-url=http://web.archive.org/web/20230413145413/https://iapps.courts.state.ny.us/attorneyservices/wicket/page/SearchResultsPage?2 |archive-date=2023-04-13 |access-date=2025-02-21 |website=iapps.courts.state.ny.us}}

With her husband, James E. Fleming, McClain defends traditional liberal rights.{{cite journal |last1=West |first1=Robin |title=Liberal Responsibilities |journal=Tulsa Law Review |date=2013 |volume=49 |issue=2 |page=396 |url=https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2379&context=facpub |accessdate=27 September 2019}} In Ordered Liberty: Rights, Responsibilities, and Virtues, they attempt to show there is a middle ground between liberal, civic republican, communitarian, and progressive camps.{{cite journal |last1=Brown |first1=Rebecca L. |title=Common Good and Common Ground: The Inevitability of Fundamental Disagreement |journal=University of Chicago Law Review |date=2014 |volume=81 |issue=1 |page=397 |url=http://uchicagolawjournalsmshaytiubv.devcloud.acquia-sites.com/sites/lawreview.uchicago.edu/files/15_Brown_BKR.pdf |accessdate=26 September 2019}} Fleming and McClain argue this "responsibility as autonomy", exercised when government does not attempt to steer citizens in a particular direction, is different from "responsibility as accountability" to society advocated by communitarians. They advance that the government can provide information and support for all alternatives that allow individuals to reflect and choose what is best. Critics think this is easier in theory than in practice; differently situated individuals can interpret the intended persuasion behind the same piece of information differently. {{rp|400–01}} Additionally, if government intervention is necessary to create conditions for an individual to be able to make an autonomous choice, for example, "the material and social preconditions for women's equal citizenship", it is probable the government will have to restrict others' autonomy.{{cite journal |last1=Brown |first1=Rebecca L. |title=Common Good and Common Ground: The Inevitability of Fundamental Disagreement |journal=University of Chicago Law Review |date=2014 |volume=81 |issue=1 |pages=403–04 |url=http://uchicagolawjournalsmshaytiubv.devcloud.acquia-sites.com/sites/lawreview.uchicago.edu/files/15_Brown_BKR.pdf |accessdate=26 September 2019}} (Quoting James E. Fleming & Linda McClain, Ordered Liberty: Rights, Responsibilities, and Virtues 79 (2012)). Although McClain and Fleming's argument relies on the belief that individuals will choose to act in the best interests of society, they acknowledge that rights should not be absolute; they should be limited when there is a stronger competing interest. McClain and Fleming examine a line of Supreme Court abortion cases, an area communitarians identify with absolute rights, and note that the balancing of individual rights and state interests is taking place, not the application of strict scrutiny, intermediate scrutiny, or the rational basis test.{{cite web |last1=Yankah |first1=Ekow |authorlink1=Ekow Yankah|title=Liberalism Revisited |url=https://juris.jotwell.com/liberalism-revisited/ |website=JOTWELL |accessdate=27 September 2019|date=2013-10-21 }} (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,{{cite web |last1=Dorf |first1=Michael C. |title=Liberalism's Errant Theodicy |url=https://balkin.blogspot.com/2013/02/liberalisms-errant-theodicy.html |website=Balkinization |accessdate=11 September 2019}} and McClain has explained that an individual right is necessary to give the individual space to make the important decision autonomously.{{cite journal |last1=Melendez-Juarbe |first1=Hiram A. |title=Privacy in Puerto Rico and the Madman's Plight: Decisions |journal=Georgetown Journal of Gender and the Law |date=2008 |volume=9 |issue=1 |page=22 |url=https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/grggenl9&id=20&men_tab=srchresults |accessdate=13 September 2019 |url-access=subscription}} (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. {{rp|400}} Tolerance of different approaches, which McClain has argued should be "toleration as respect" as opposed to grudging tolerance,{{cite journal |last1=Klevin |first1=Thomas |title=Mandating Public School Attendance: A Proposal for Achieving Racial and Class Integration |journal=Thurgood Marshall Law Review |date=Fall 2008 |volume=34 |issue=1 |page=140, n. 100 |url=https://heinonline.org/HOL/P?h=hein.journals/thurlr34&i=142 |accessdate=21 October 2019 |url-access=subscription}} (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"{{cite journal |last1=Alfieri |first1=Anthony V. |title=Prosecuting Race |journal=Duke Law Journal |date=April 1999 |volume=48 |issue=6 |page=1246 |doi=10.2307/1373016 |jstor=1373016 |url=https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1056&context=dlj |accessdate=22 October 2019}} (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.{{cite journal |last1=Greene |first1=Abner S. |title=Civil Society and Multiple Repositories of Power |journal=Chicago-Kent Law Review |date=2000 |volume=75 |issue=2 |page=488 |url=https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3199&context=cklawreview |accessdate=21 October 2019}} (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.{{cite journal |last1=Massaro |first1=Toni M. |title=Some Realism About Constitutional Liberalism |journal=Constitutional Commentary |date=2012 |volume=28 |page=393 |url=https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=2109&context=concomm |accessdate=26 September 2019}} (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).{{cite journal |last1=Reisert |first1=Joseph R. |title=Review: Ordered Liberty: Rights, Responsibilities, and Virtues |journal=Law and Politics Book Review |date=July 2013 |volume=23 |issue=7 |page=317 |url=http://www.lpbr.net/2013/07/ordered-liberty-rights-responsibilities.html |accessdate=24 September 2019}} 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.{{cite web |last1=Greenfield |first1=Kent |title=Civic Virtue: Teach Your Children Well |url=https://blog.simplejustice.us/2013/02/27/civic-virtue-teach-your-children-well/ |website=Simple Justice: A Criminal Defense Blog |accessdate=27 September 2019|date=2013-02-27 }}

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.{{cite journal |last1=Melendez-Juarbe |first1=Hiram A. |title=Privacy in Puerto Rico and the Madman's Plight: Decisions |journal=Georgetown Journal of Gender and the Law |date=2008 |volume=9 |issue=1 |page=18, n.68 |url=https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/grggenl9&id=20&men_tab=srchresults |accessdate=13 September 2019 |url-access=subscription}}(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.{{cite journal |last1=Wriggins |first1=Jennifer |title=Marriage Law and Family Law: Autonomy, Interdependence and Couples of the Same Gender |journal=Boston College Law Review |date=2000 |volume=41 |issue=2 |page=308, n. 286; 320, n. 352 |url=https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2144&context=bclr |accessdate=20 September 2019}} (Citing Linda McClain, [https://kb.osu.edu/bitstream/handle/1811/64943/OSLJ_V59N1_0019.pdf?sequence=1&isAllowed=y 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.{{cite journal |last1=Greene |first1=Abner S. |title=State Speech and Political Liberalism |journal=Constitutional Commentary |date=2012 |volume=32 |pages=424–25, 428 |url=https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1042&context=concomm |accessdate=24 September 2019}} 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.{{cite journal |last1=Kersch |first1=Ken I. |title=Bringing It All Back Home? |journal=Constitutional Commentary |date=2012 |volume=28 |page=414 |url=https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1575&context=concomm |accessdate=25 September 2019}} Arguments regarding individual rights and autonomy are also difficult to apply in a post Citizens United world where organizations possess constitutional rights. {{rp|398}}

McClain has also defended liberalism against feminist critique that encouraging autonomy leads to socially disconnected individuals,{{cite journal |last1=Higgins |first1=Tracy E. |title=Democracy and Feminism |journal=Harvard Law Review |date=June 1997 |volume=110 |issue=8 |page=1693, n. 179 |doi=10.2307/1342041 |jstor=1342041 |url=https://heinonline.org/HOL/P?h=hein.journals/hlr110&i=1711 |accessdate=7 October 2019 |url-access=subscription}} (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,{{cite journal |last1=Reilly |first1=Elizabeth A. |title=The Rhetoric of Disrespect: Uncovering the Faulty Premises Infecting Reproductive Rights |journal=American University Journal of Gender and the Law |date=Fall 1996 |volume=5 |issue=1 |page=188, n. 206 |pmid=16594108 |url=https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1236&context=jgspl |accessdate=7 October 2019}} (Citing Linda C. McClain, "Atomistic Man" Revisited: Liberalism, Connection, and Feminist Jurisprudence, 65 S. Cal. L. Rev. 1171 (1992)). liberal theory also allows for interdependency that can result in increased individual self-worth and respect amongst individuals.{{cite journal |last1=Bartlett |first1=Katharine T. |title=Feminist Legal Scholarship: A History through the Lens of the California Law Review |journal=California Law Review |date=April 2012 |volume=100 |issue=2 |page=399, n. 100 |url=https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1011&context=californialawreview |accessdate=16 October 2019}}

When 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.{{cite journal |last1=Yarbrough |first1=Michael W. |title=Toward a Political Sociology of Conjugal-Recognition Regimes: Gendered Multiculturalism in South African Marriage Law |date=2015 |page=4 |url=https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1030&context=jj_pubs |accessdate=19 September 2019}} (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).

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.{{cite book |last1=Rhode |first1=Deborah L. |title=Speaking of Sex: The Denial of Gender Inequality |date=1997 |publisher=Harvard University Press |isbn=0674831772 |page=207 |url=https://books.google.com/books?id=ilR5D4vnuv4C&q=%22Equality%2C+Oppression%2C+and+Abortion%3A+Women+Who+Oppose+Abortion+Rights+in+the+Name+of+Feminism%22&pg=PA207 |accessdate=13 September 2019}}(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.{{cite journal |last1=Hanigsberg |first1=Julia E. |title=Homologizing Pregnancy and Motherhood: A Consideration of Abortion |journal=Michigan Law Review |date=1995 |volume=94 |issue=2 |page=394, n. 98 |doi=10.2307/1289842 |jstor=1289842 |pmid=10160508 |url=https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2047&context=mlr |accessdate=13 September 2019}}(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.{{cite journal |last1=Carbone |first1=June |title=Review: Is Fertility the Unspoken Issue in the Debate between Liberal and Conservative Family Values? |journal=Law & Social Inquiry |date=Summer 2007 |volume=32 |issue=3 |page=824 |doi=10.1111/j.1747-4469.2007.00078.x |jstor=20108726 |s2cid=142559934 }} (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. {{rp|833}} She has examined the description of men as unable to control their sexual urges as a cultural excuse of men's conduct,{{cite journal |last1=Strasser |first1=Mark |title=The Future of Same-Sex Marriage |journal=University of Hawai'i Law Review |date=Spring 2000 |volume=22 |issue=1 |page=131 |url=https://heinonline.org/HOL/P?h=hein.journals/uhawlr22&i=147 |accessdate=18 October 2019 |url-access=subscription}} (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.{{cite journal |last1=Frelich Appleton |first1=Susan |title=Toward a "Culturally Cliterate" Family Law? |journal=Berkeley Journal of Gender, Law & Justice |date=2008 |volume=23 |issue=2 |page=282, n. 89 |url=https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1273&context=bglj |accessdate=20 September 2019}} (Citing Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility 258, 272 (2006)). Don Browning counters that 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.{{cite journal |last1=Stewart |first1=Monte Neil |title=Marriage Facts |journal=Harvard Journal of Law & Public Policy |date=Winter 2008 |volume=31 |issue=1 |page=345, n. 135 |url=https://heinonline.org/HOL/P?h=hein.journals/hjlpp31&i=349 |accessdate=18 October 2019}} (Citing Linda McClain, Love, Marriage, and the Baby Carriage: Revisiting the Channeling Function of Family Law, 28 Cardozo L. Rev. 2133 (2007)).

McClain believes irresponsible language is also applied to women who choose to give birth. McClain has discussed how descriptions of single mothers, teenage mothers, and mothers receiving welfare as irresponsible{{cite journal |last1=Cahn |first1=Naomi R. |title=Moral Complexities of Family Law |journal=Stanford Law Review |date=November 1997 |volume=50 |issue=1 |page=269, n. 206 |doi=10.2307/1229362 |jstor=1229362 |url=https://heinonline.org/HOL/P?h=hein.journals/stflr50&i=287 |accessdate=16 October 2019 |url-access=subscription}} (Citing Linda C. McClain, "Irresponsible" Reproduction, 47 Hastings L.J. 339, 342 (1996)). has led to beliefs that single mothers are immoral.{{cite journal |last1=McCluskey |first1=Martha T. |title=Efficiency and Social Citizenship: Challenging the Neoliberal Attack on the Welfare State |journal=Indiana Law Journal |date=2003 |volume=78 |issue=2 |page=812, n. 130 |url=https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1852&context=ilj |accessdate=16 September 2019}} (Citing Linda C. McClain, "Irresponsible" Reproduction, 47 Hastings Law Journal 339, 345-64 (1996)).

McClain has asserted that examining abortion through a relational feminist lens puts abortion rights at risk{{cite journal |last1=Johnson |first1=Nicholas J. |title=Principles and Passions: The Intersection of Abortion and Gun Rights |journal=Rutgers Law Review |date=Fall 1997 |volume=50 |issue=1 |page=182, n. 360 |url=https://heinonline.org/HOL/P?h=hein.journals/rutlr50&i=192 |accessdate=16 October 2019 |url-access=subscription}}. by encouraging women to be legally required to take on traditional responsibilities.{{cite journal |last1=Reilly |first1=Elizabeth |title=The Jurisprudence of Doubt: How the Premises of the Supreme Court's Abortion Jurisprudence Undermine Procreative Liberty |journal=Journal of Law & Politics |date=Fall 1998 |volume=14 |issue=4 |page=819, n. 278 |url=https://heinonline.org/HOL/P?h=hein.journals/jlp14&i=829 |accessdate=16 October 2019 |url-access=subscription}} (Citing Linda C. McClain, "Atomistic Man" Revisited: Liberalism, Connection, and Feminist Jurisprudence, 65 S. Cal. L. Rev. 1171, 1251-56 (1992)).

McClain has identified religious influences that encourage female submission{{cite book |last1=Khan |first1=Ayesha N. |title=Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties |date=September 2016 |chapter=Statement|publisher=U.S. Commission on Civil Rights |location=Washington, D.C. |page=256 |chapter-url=https://www.usccr.gov/pubs/docs/Peaceful-Coexistence-09-07-16.PDFhttps://www.usccr.gov/pubs/docs/Peaceful-Coexistence-09-07-16.PDF |accessdate=19 September 2019}} and considered how government can promote sex equality on a local level, advocating for pro-sex equality public school instruction and required premarital counseling regarding property ownership and domestic violence.{{cite book |editor-last1=Baehr |editor-first1=Amy R. |title=Varieties of Feminist Liberalism |date=2004 |location=Lanham |isbn=0742512029 |page=9 |url=https://books.google.com/books?id=5PWAnC6cBCQC&q=%22The+Domain+of+Civic+Virtue+in+a+Good+Society%3A+Families%2C+Schools%2C+and+Sex+Equality%22&pg=PA9 |accessdate=18 September 2019}} Her writings on public education and sex equality also extend to sex education, where she advocates applying liberal feminist theory of sexuality, which recognizes sexual desire and expression as normal, and expects sexual responsibility from all individuals regardless of gender.{{cite journal |title=Annotated Legal Bibliography on Gender |journal=Cardozo Journal of Law & Gender |date=2006 |volume=13 |issue=1 |page=204 |url=https://heinonline.org/HOL/P?h=hein.journals/cardw13&i=206 |accessdate=22 October 2019 |url-access=subscription}} (Reviewing Linda C. McClain, Some ABCs of Feminist Sex Education (In Light of the Sexuality Critique of Legal Feminism), 15 Colum. J. Gender & L. 63 (2006)). In addition to teaching responsibility, sex education should strive to foster capacity and equality{{cite journal |title=Law Review Digests |journal=Journal of Law & Education |date=July 2006 |volume=35 |issue=3 |page=376 |url=https://heinonline.org/HOL/P?h=hein.journals/jle35&i=386 |accessdate=22 October 2019 |url-access=subscription}} (Reviewing Linda C. McClain, Some ABCs of Feminist Sex Education (In Light of the Sexuality Critique of Legal Feminism), 15 Colum. J. Gender & L. 63 (2005)). by covering all types of sexual activity and discussing the societal context of sex, gendered messages that have been internalized, and the "sexual double standard."{{cite journal |last1=Frelich Appleton |first1=Susan |title=Toward a "Culturally Cliterate" Family Law? |journal=Berkeley Journal of Gender, Law & Justice |date=2008 |volume=23 |issue=2 |pages=313–14 |url=https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1273&context=bglj |accessdate=20 September 2019}} (Citing Linda C. McClain, Some ABCs of Feminist Sex Education (in Light of the Sexuality Critique of Legal Feminism), 15 Columbia Journal of Gender & Law 63, 68-69 (2006)). Other legal scholars have expressed concerns about a public school sex education program that legitimizes various sexual activities when that conflicts with parental teachings. McClain believes government has an obligation to expose children to teachings that vary from their parents' beliefs to encourage open-mindedness and critical thinking. {{rp|339}}

McClain has also advocated that governments look beyond marriage and the traditional nuclear family structure when devising programs to help families, so that all types of families' needs are recognized and considered important. This contributes to sex equality by legitimizing family arrangements outside of the traditional male head of household and female caretaker model.{{cite book |last1=van Acker |first1=Elizabeth |title=Marriage and Values in Public Policy: Conflicts in the UK, the US and Australia |date=2017 |publisher=Routledge |isbn=9781138813458 |page=61 |url=https://books.google.com/books?id=RTslDwAAQBAJ&q=McClain&pg=PA150 |accessdate=19 September 2019}} (Citing McClain, L.C. 2014. 'Federal Family Policy and Family Values from Clinton to Obama, 1992-2012 and Beyond.' Michigan State Law Review, 2013: 1621-1718).

McClain has likened the female body to a castle or sanctuary entitled to the utmost privacy protections extended to the home under tort law{{cite journal |last1=Kennedy |first1=Elizabeth J. |title=When the Shop Floor is in the Living Room: Toward a Domestic Employment Relationship Theory |journal=New York University Annual Survey of American Law |date=2012 |volume=67 |issue=4 |page=662, n. 89 |url=https://annualsurveyofamericanlaw.org/wp-content/uploads/2015/01/643-kennedy.pdf |accessdate=18 October 2019}} (Citing Linda C. McClain, Inviobility and Privacy: The Castle, the Sanctuary, and the Body, 7 Yale J.L. & Human. 195, 202-03 (1995)). arguing for increased legal protections for women's sexual autonomy and safety.{{cite journal |last1=Johnson |first1=Nicholas J. |title=Principles and Passions: The Intersection of Abortion and Gun Rights |journal=Rutgers Law Review |date=Fall 1997 |volume=50 |issue=1 |pages=120–21 |url=https://heinonline.org/HOL/P?h=hein.journals/rutlr50&i=130 |accessdate=18 October 2019 |url-access=subscription}} (Citing Linda C. McClain, Inviobility and Privacy: The Castle, the Sanctuary, and the Body, 7 Yale J.L. & Human. 195, 195-96, 240 (1995)). She has been critical of marital rape exemptions because they disregard women's autonomy,{{cite journal |last1=Hasday |first1=Jill Elaine |title=Contest and Consent: A Legal History of Marital Rape |journal=California Law Review |date=2000 |volume=88 |issue=5 |page=1494 |doi=10.2307/3481263 |jstor=3481263 |url=https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1484&context=californialawreview |accessdate=18 October 2019}} (Quoting Linda C. McClain, Inviolability and Privacy: The Castle, the Sanctuary, and the Body, 7 Yale J.L. & Human. 195, 213 (1995)). and has not found that husbands' privacy rights justify the exemption{{cite journal |last1=Fleming |first1=James E. |title=Securing Deliberative Autonomy |journal=Stanford Law Review |date=November 1995 |volume=48 |issue=1 |page=47, n. 275 |doi=10.2307/1229149 |jstor=1229149 |url=https://heinonline.org/HOL/P?h=hein.journals/stflr48&i=65 |accessdate=18 October 2019 |url-access=subscription}} (Citing Linda C. McClain, Inviolability and Privacy: The Castle, the Sanctuary, and the Body, 7 Yale J.L. & Human. 195, 217 (1995)). or prevent their prosecution for domestic violence.{{cite journal |last1=Higgins |first1=Tracy E. |title=Democracy and Feminism |journal=Harvard Law Review |date=June 1997 |volume=110 |issue=8 |page=1676, n. 92 |doi=10.2307/1342041 |jstor=1342041 |url=https://heinonline.org/HOL/P?h=hein.journals/hlr110&i=1694 |accessdate=18 October 2019 |url-access=subscription}} (Citing Linda C. McClain, Inviolability and Privacy: The Castle, the Sanctuary, and the Body, 7 Yale J.L. & Human. 195, 207-20 (1995)).

McClain's book, The Place of Families: Fostering Capacity, Equality, and Responsibility, is "a feminist vision of the family in moral terms", {{rp|837}} and has been placed between critical feminist theories that seek to discontinue government regulation of marriage and those legal scholars, such as Margaret Brinig and Milton Regan, who favor continued state-governed marriage. She states that the institution of marriage should be retained, but that its benefits should be open to more people, even if they do not want to legally marry, and government programs encouraging marriage need to consider how poverty impacts the ability to sustain healthy relationships.{{cite journal |last1=Mayeri |first1=Serena |title=Historicizing the "End of Men": The Politics of Reaction(s) |journal=Boston University Law Review |date=2013 |volume=93 |issue=3 |page=740, n. 66 |url=http://www.bu.edu/bulawreview/files/2013/08/MAYERI.pdf |accessdate=7 October 2019}} (Citing Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility 132-34 (2006)). Her work emphasizes equality across different family structures as important for society.{{cite journal |last1=Carbone |first1=June |title=Is Fertility the Unspoken Issue in the Debate between Liberal and Conservative Family Values? |journal=Law & Social Inquiry |date=Summer 2007 |volume=32 |issue=3 |page=810 |doi=10.1111/j.1747-4469.2007.00078.x |jstor=20108726 |s2cid=142559934 }} Whereas other scholars believe social institutions can help families prepare children for democratic participation, McClain, with James Fleming, has expressed concerns about relying on civil society institutions with their own agendas for moral education.{{cite journal |last1=Macedo |first1=Stephen |title=Constituting Civil Society: School Vouchers, Religious Nonprofit Organizations, and Liberal Public Values |journal=Chicago-Kent Law Review |date=2000 |volume=75 |issue=2 |page=417 |url=https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3197&context=cklawreview |accessdate=21 October 2019}} (Citing Linda C. McClain & James E. Fleming, Some Questions for Civil Society Revivalists, 75 Chi.-Kent L. Rev. 301 (2000)). McClain believes government persuasion{{cite journal |last1=Bix |first1=Brian H. |title=Perfectionist Policies in Family Law |journal=University of Illinois Law Review |date=2007 |volume=2007 |issue=3 |page=1058 |url=https://illinoislawreview.org/wp-content/ilr-content/articles/2007/3/Bix.pdf |accessdate=30 September 2019}} is needed to create the appropriate environment by helping working parents through parental leave and subsidies for higher quality care. {{rp|822}} The subtitle of The Place of Families, "Fostering Capacity, Equality, and Responsibility," outlines the values significant enough to require government action.{{cite journal |last1=Tronto |first1=Joan C. |title=Book Review: The Place of Families: Fostering Capacity, Equality, and Responsibility |journal=Perspectives on Politics |date=March 2007 |volume=5 |issue=1 |page=154 |doi=10.1017/S1537592707070223 |s2cid=146673690 }}

Criticism of McClain's work asks how she can argue government should promote gender equality within families while rejecting state promotion of sexual activity within the confines of marriage. Other government action criticism notes that to create equality among different family types, government must make up deficits experienced by children due to their parents' sub-optimal decisions, and this support could encourage undesired adult behavior. {{rp|812}} There is also a question whether government supports can create true equality among different types of families, or whether subsidies create marginalized family groups. {{rp|829}} Critics also take issue with McClain's use of the moral good to support all families, regardless of makeup, while ignoring empirical evidence of the enhanced premoral goods some family makeups generally bestow on children.{{cite journal |last1=Browning |first1=Don |title=Linda McClain's The Place of Families and Contemporary Family Law: A Critique from Critical Familism |journal=Journal of Lutheran Ethics |date=1 February 2007 |url=https://www.elca.org/JLE/Articles/532 |accessdate=20 September 2019}} McClain addressed this criticism in a subsequent article, where she acknowledged the channelling function of family law, encouraging people to marry, sometimes conflicts with fairness, but that channelling is still a legitimate purpose of family law, and marriage is something individuals in non-traditional families still strive for.{{cite journal |last1=McClain |first1=Linda C. |title=Love, Marriage, and the Baby Carriage: Revisiting the Channelling Function of Family Law |journal=Cardozo Law Review |date=2007 |volume=28 |pages=2133, 2174, 2177 |url=https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/cdozo28&id=2149&men_tab=srchresults |accessdate=20 September 2019 |url-access=subscription}} Additionally, some of the institutions, such as the Institute for American Values, associated with empirical evidence showing greater benefits to children in families with low-conflict, two married biological parents, were also quick to turn out reports questioning the future of marriage in response to movement in the same-sex marriage debate. {{rp|2136}} She has also responded to empirical evidence that women in "traditional" gender role marriages are more satisfied that women in egalitarian relationships, noting that women in traditional marriages likely have lower expectations that are met, whereas women in egalitarian relationships have higher expectations that are met less often. {{rp|1060}}

McClain has also considered compensation for care work, arguing that raising children well instills traits that allow them to participate in democratic government.{{cite journal |last1=McCluskey |first1=Martha T. |title=Efficiency and Social Citizenship: Challenging the Neoliberal Attack on the Welfare State |journal=Indiana Law Journal |date=2003 |volume=78 |issue=2 |pages=818, 825 |url=https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1852&context=ilj |accessdate=16 September 2019}} (Citing Linda C. McClain, Care as a Public Value: Linking Responsibility, Resources, and Republicanism, 76 Chicago-Kent Law Review, 1673, 1697-702 (2001)).{{cite book |last1=Weiner |first1=Merle H. |title=A Parent-Partner Status for American Family Law |date=2015 |publisher=Cambridge University Press |location=New York |isbn=9781107088085 |page=306 |url=https://books.google.com/books?id=uc13CgAAQBAJ&q=McClain&pg=PA587 |accessdate=18 September 2019}} (Citing Linda McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility 68-73 (2006)). She has also examined how women respond to inequality by caring for the disadvantaged, which itself generates societal value.{{cite journal |last1=Staudt |first1=Nancy C. |title=Taxing Housework |journal=The Georgetown Law Journal |date=May 1996 |volume=84 |issue=5 |page=1584, n. 54 |url=https://heinonline.org/HOL/P?h=hein.journals/glj84&i=1604 |accessdate=25 September 2019 |url-access=subscription}} (Citing Linda C. McClain, Atomistic Man Revisited: Liberalism, Connection, and Feminist Jurisprudence, 65 Southern California Law Review 1171, 1184 (1992)). However, while women have traditionally been the primary caretakers, McClain believes government programming should encourage both genders to engage in this important work. She believes caring for children alone is a valuable contribution to society and has criticized the Personal Responsibility and Work Opportunity Act for requiring paid work contributions in addition to care work.{{cite journal |last1=McCluskey |first1=Martha T. |title=Efficiency and Social Citizenship: Challenging the Neoliberal Attack on the Welfare State |journal=Indiana Law Journal |date=2003 |volume=78 |issue=2 |pages=824, 829 |url=https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1852&context=ilj |accessdate=17 September 2019}} (Citing Linda C. McClain, 'Citizenship Begins at Home: The New Social Contract and Working Families,' in Henry Tam (ed.), Progressive Politics in the Global Age (Oxford: Polity Press, 2001), 97-99, 101). However, McClain's recommendations are not simply compensating parents for the caretaking functions they perform; she has argued that caring for children should be considered a public function that is part of good self-government, and as such, society should do more to support parent education, work-life balance,{{cite journal |last1=McCluskey |first1=Martha T. |title=Efficiency and Social Citizenship: Challenging the Neoliberal Attack on the Welfare State |journal=Indiana Law Journal |date=2003 |volume=78 |issue=2 |pages=831, 845–46 |url=https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1852&context=ilj |accessdate=18 September 2019}} (Citing Linda C. McClain, 'Citizenship Begins at Home: The New Social Contract and Working Families,' in Henry Tam (ed.), Progressive Politics in the Global Age (Oxford: Polity Press, 2001), 101; Linda C. McClain, 'Toward a Formative Project of Securing Freedom and Equality,' 85 Cornell Law Review 1221, 1251-53 (2000)). and employment issues in the child care industry.{{cite journal |last1=Czapanskiy |first1=Karen |title=The Bookshelf: The Place of Families: Fostering Capacity, Equality, and Responsibility |journal=Family Court Review |date=2007 |volume=45 |issue=2 |page=336 |doi=10.1111/j.1744-1617.2007.00147.x }} Others have questioned making child care a public value, worried that it would allow majority views to define family.{{cite journal |last1=Silbaugh |first1=Katharine B. |authorlink=Katharine Silbaugh |title=Foreword: The Structures of Care Work |journal=Chicago-Kent Law Review |date=2001 |volume=76 |issue=3 |page=1398 |url=https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3323&context=cklawreview |accessdate=18 October 2019}} Additionally, there are concerns that employer accommodation of employee mothers will shift the burden to childless female employees instead of all childless employees. {{rp|1399}}

Although other legal scholars, such as Leslie Bender, have argued the feminist ethic of care requires a duty to rescue, McClain has disagreed, distinguishing the ethic of care from beneficence.{{cite journal |last1=Murphy |first1=Liam |title=Beneficence, Law, and Liberty |journal=Georgetown Law Journal |date=March 2001 |volume=89 |issue=3 |page=625, n.91 |url=https://heinonline.org/HOL/P?h=hein.journals/glj89&i=647 |accessdate=7 October 2019 |url-access=subscription}} (Citing Linda C. McClain, "Atomistic Man" Revisited: Liberalism, Connection, and Feminist Jurisprudence, 65 S. Cal. L. Rev. 1171, 1238-42 (1992)).

• Linda C. McClain, Who's the Bigot? Learning from Conflicts over Marriage and Civil Rights Law (2020).
• Douglas E. Abrams, Naomi R. Cahn, Catherine J. Ross & Linda C. McClain, Contemporary Family Law (5th ed. 2019).
• James E. Fleming, Sotirios A. Barber, Stephen Macedo & Linda C. McClain, Gay Rights and the Constitution (2016).
• Douglas E. Abrams, Naomi R. Cahn, Catherine J. Ross, David D. Meyer & Linda C. McClain, Contemporary Family Law (4th ed. 2015).
• James E. Fleming & Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (2013).
• What is Parenthood? Contemporary Debates about the Family (Eds. Linda C. McClain & Daniel Cere, 2013).
• Gender Equality: Dimensions of Women's Equal Citizenship (Eds. Linda C. McClain & Joanna L. Grossman, 2009).
• Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility (2006).

According to Google Scholar,{{cite web |title=Linda C. McClain (author profile) |url=https://scholar.google.com/citations?user=4bgaJCQAAAAJ&hl=en |website=Google Scholar |accessdate=27 September 2019}} HeinOnline,{{cite web |title=McClain, Linda Christine |url=https://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=McClain,%20Linda%20Christine&base=js |website=HeinOnline |accessdate=16 October 2019 |url-access=subscription}} and Web of Science,{{cite web |title=McClain, Linda C. |url=https://app.webofknowledge.com/author/#/record/782516 |website=Web of Science |publisher=Clarivate Analytics |accessdate=25 November 2019 |url-access=subscription |archive-date=29 May 2020 |archive-url=https://web.archive.org/web/20200529022342/https://app.webofknowledge.com/author/#/record/782516 |url-status=dead }} McClain's most-cited articles include:

• Atomistic Man Revisited: Liberalism, Connection, and Feminist Jurisprudence, 65 S. Cal. L. Rev. 1171 (1992).
• "Irresponsible" Reproduction, 47 Hastings L.J. 339 (1996).
• Rights and Irresponsibility, 43 Duke L.J. 989 (1993).
• Inviobility and Privacy: The Castle, the Sanctuary, and the Body, 7 Yale J.L. & Human. 195 (1995).

{{Reflist}}

• [http://www.bu.edu/law/profile/linda-c-mcclain/ Boston University School of Law profile]

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Category:1958 births

Category:American women lawyers

Category:Boston University School of Law faculty

Category:Oberlin College alumni

Category:University of Chicago Divinity School alumni

Category:Georgetown University Law Center alumni

Category:New York University School of Law alumni

Category:Hofstra University faculty

Category:Family law in the United States

Category:Equality rights

Category:Living people

Category:American women academics

Category:21st-century American women