COLUMN ONE : Feminists Make Their Legal Case : Some scholars are arguing that the legal system is biased because it reflects male values. Judges are starting to listen.

Does the legal system tilt toward males?

* In a child custody case, a Ventura County judge rules that a boy should go to the parent whose business is more established. Generally, a guideline like that would favor a man.

* A federal court voids a California law requiring employers to reinstate female workers after maternity leave. The court holds that employers would be subject to discrimination suits from men who do not receive the same treatment after an unpaid leave of absence.

* A woman complains of sexual harassment by a co-worker but a federal judge in Northern California dismisses the case, finding the man’s behavior “isolated and genuinely trivial.”

With evidence like that, feminist scholars are arguing that the legal system reflects male values because it wasn’t designed with women in mind.

Feminist ideas are starting to take hold in such areas as sexual harassment, pregnancy benefits, employment discrimination, domestic violence and family law. Casebooks and journals now routinely use the pronoun “she” instead of “he” when referring to hypothetical judges and lawyers.

But some feminist legal theorists, claiming that women’s values are in many ways different from men’s, are going beyond these so-called women’s issues--questioning the appropriateness of an adversarial legal system and advocating an overhaul of traditional legal branches such as negligence law. “Women are unhappy having to be aggressive gladiators,” said UCLA law professor Carrie Menkel-Meadow.

Even as they rankle traditionalists and encounter resistance at many law schools, feminist legal scholars are making headway.

In the Ventura County child custody case, Los Angeles lawyers Christine A. Littleton and Sheila J. Kuehl last year persuaded an appeals court that the ruling reflected gender bias. “Any rule based on the relative wealth of parents will almost invariably favor men,” the 2nd District Court of Appeal said in reversing the lower court.

In the pregnancy leave case, the U.S. Supreme Court in 1987 upheld the California law on grounds that “it allows women, as well as men, to have families without losing their jobs.”

In the sexual harassment case, decided in January, the U.S. 9th Circuit Court of Appeals reversed the lower court. In the process the legal system’s long-held “reasonable man” standard took a beating.

For years, courts spoke of a “reasonable man” when trying to establish an objective standard for how people should behave. More recently, judges have simply substituted the word “person” for “man.” But in the recent case, the appeals court ruled that the lower court must consider how a “reasonable woman”--rather than reasonable person-- might respond to unwanted advances from a co-worker.

“A sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women,” wrote Judge Robert R. Beezer for the 2-1 majority. What might seem like trivial behavior to a man could be frightening and upsetting to a woman, the court said.

Heavily influenced by the work of social scientist Carol Gilligan of Harvard’s Graduate School of Education, feminist scholars say the law perpetuates a “male” value system of abstract rules, rights and hierarchies, often at the expense of “female” values based upon relationships, responsibilities and caring.

Research by Gilligan and others suggests that men tend to value individual rights over duties that might interfere with their freedom, while women--some believe because of their role as childbearers and the socialization process for young girls--tend to emphasize people’s dependence on each other.

That a bystander is not legally required to come to the aid of an accident victim is often cited as a classic example of masculine thinking. A legal system that encourages concern for each other’s safety would never contain such a doctrine, argued law professor Leslie Bender of Syracuse University.

So intense is the interest in feminist law that legal journals in the field are proliferating at schools all over the country--UCLA and USC will launch theirs this spring--as are courses and conferences in feminist legal thought. A recent bibliography on women and legal scholarship lists 71 pages of books and articles.

As many as 100 scholars are contributing to feminist legal literature, estimates Littleton, who teaches at UCLA. “When I first started doing this work, we all knew each other,” she said. “Now I can’t read everything that feminist legal theory comes up with.”

Some feminist law review articles are peppered with words like “patriarchy,” “male supremacy” and “phallocentrism.” While most scholars avoid such inflammatory language, many do hold provocative views about the relationship between men and women.

Most believe it is self-evident that women are dominated by men. Some, but by no means all, share the philosophy of the University of Michigan Law School’s Catharine A. MacKinnon, who argues that sexual violence against women is pervasive. In the view of MacKinnon, often described as the most influential feminist legal scholar, much of what passes as consensual sex between men and women could more properly be described as rape.

In some ways, however, the legal scholars have veered from some decades-old feminist concepts--for example, the commitment to unswervingly equal treatment of men and women.

The “equalist” approach is often seen as placing women at a disadvantage. Many feminists believe, for example, that women should be able to benefit from affirmative action or separate women’s schools--notions seemingly in conflict with equal treatment of both sexes.

Feminist legal scholars now say women and men must sometimes be treated differently to achieve equal results. Women, for example, are likely to find it more difficult than men to both keep their jobs and fulfill their parental duties unless special accommodations are made for them. But “equalists”--generally practicing lawyers rather than academics--worry that treating women as a special class might be a step backward.

At many law schools, feminists have struggled for acceptance--and tenure. “A lot of law schools are terrified of them,” said Steven Shiffrin, a respected constitutional scholar at Cornell Law School who agrees that “the law was developed with a male standard in mind.”

Feminist scholars with seemingly impressive credentials have been turned down for tenure at such prestigious law schools as Harvard, Yale and the University of Pennsylvania. In what was considered something of a milestone, Eleanor Swift won reversal in 1989 of a decision denying her tenure at UC Berkeley’s Boalt Hall; during her two-year battle, a university committee found that the law school had engaged in a pattern of discrimination against women.

One feminist stronghold is UCLA. There are 18 women on its 59-member full-time faculty, 10 of them contributors to feminist legal scholarship. It has long had several feminists in its top administrative ranks, including Susan Prager, an authority on community property who is now in her ninth year as dean.

Feminist scholars, who tend to be younger than most of their colleagues, have benefited from UCLA’s long-established policy of hiring professors before they become well known as well as from the encouragement of male professors such as Kenneth Karst, author of an early supportive article, “Woman’s Constitution.”

“You have men in senior positions who are not threatened by new ideas,” said Mari Matsuda, a University of Hawaii law professor who is visiting UCLA this year.

One critic of the feminists is U.S 7th Circuit Judge Richard A. Posner, law professor at the University of Chicago. A self-described conservative feminist, Posner offers an appraisal based on economic principles--he believes, for example, that the cost of enforcing sex discrimination laws may have the unintended consequence of lowering men’s wages and thereby forcing more women to go to work.

The severest criticism has come from other feminists--black feminist legal scholars who maintain that their colleagues pay scant attention to the experiences of poor non-white women.

But perhaps the biggest worry of feminist legal scholars is that they will be ignored. No scholar of prominence has criticized feminism in the law journals. “I’m worried that nobody’s taking it seriously enough to even respond to it,” said Cornell law professor Cynthia R. Farina.

Silence should not be construed as assent, said Prof. Geoffrey Hazard of Yale Law School. Would-be critics, he explained, are put off by the fear of sounding anti-woman in a university climate where academics feel pressure to voice “politically correct” views.

Hazard is indignant about feminism’s view that the legal Establishment is inherently biased against women. “I recognize myself to be part of that legal Establishment,” he said. “Are (feminists) making that statement about me? And if (they are) not, where the hell are the disqualifiers?”

Perhaps even more indicative of anti-feminist sentiment is MacKinnon’s experience. She taught at seven law schools, including Yale, before being granted tenure at Michigan in 1989. Yet MacKinnon is usually credited with developing the theory that women should be able to sue an employer for sexual harassment stemming from a “hostile” work environment.

Sexual harassment law is often singled out as a great advance for feminism, particularly when compared to rape law. In a rape case, the court considers the perpetrator’s state of mind: Did he believe that his victim had consented to the act? “What you have to do--not consent--may not be reasonable for a woman to do,” said Prof. Robin West of the University of Maryland School of Law. “It increases the chances you may be killed.”

Sexual harassment, by contrast, is viewed entirely from the victim’s vantage point. The intention of the harasser is irrelevant in determining whether a hostile environment existed.

“It is the one area of the law where the point of view of the victim is the point of view of the law,” said Kuehl, managing director of the Southern California Women’s Law Center.

In the recent case before the 9th Circuit, Internal Revenue Service Agent Kerry Ellison sued her employer for failing to take adequate steps against a co-worker in her San Mateo office who had made her “frantic” with fear.

After hanging around her desk for months and pestering her, Ellison alleged, Sterling Gray had sent her a note declaring himself in turmoil over her. Next she received a long letter that was “20 times, a hundred times weirder” than the note. “I know that you are worth knowing with or without sex,” Gray wrote. “I have enjoyed you so much over these past few months. Watching you. Experiencing you from O so far away.”

Was it “reasonable” for Ellison to be afraid of Gray? Especially since he offered in the letter to leave her alone if she asked him to? Dismissing Ellison’s sexual harassment case, the federal district court concluded that the incidents were “isolated and genuinely trivial.”

In ordering a trial, the appeals court considered the possibility that Gray intended no harm. Perhaps, said Judge Beezer, he thought of himself as a latter-day Cyrano de Bergerac “wishing no more than to woo Ellison with his words.” Even so, it was her perceptions, not his intentions, that mattered, the court held.

Since men are rarely victims of sexual assault, they may fail to perceive the “underlying threat” behind the actions that Gray was accused of, the court held.

Some critics say there was no need for the court to assert a “reasonable woman” standard. “I think it’s showing off--exhibitionism,” said Yale’s Hazard. A judge considering the case from the standpoint of a “reasonable person” would automatically take into account how Ellison was affected by Gray’s behavior, according to Hazard.

But many feminists believe it is absurd to simply substitute “person” for “man” when talking about reasonable conduct. A standard 1956 reference book on negligence law describes a prudent person as “the man who takes the magazines at home and in the evening pushes the lawn mower in his shirtsleeves”--and critics maintain that many judges haven’t shed that image.

“Our critique is that what has been seen as a reasonable person standard is based on a reasonable man--and is only applicable to 50% of the population,” said Alison Wetherfield of the NOW Legal Defense and Education Fund.

In January, Wetherfield won a sexual harassment decision involving a shipyard in Jacksonville, Fla. The judge was persuaded that “a reasonable woman would find the working environment . . . abusive,” even though some of the other female employees did not complain about the pervasive pornography on the walls or the frequent sexual remarks and jokes.

Wetherfield and others said the concept of a “reasonable woman” also applies in other situations in which men might not be able to understand a woman’s response: Why, for example, would a battered wife remain with her husband? He might become more violent if she tries to leave.

And how can a woman argue self-defense when she kills a violent husband in his sleep? From a feminist perspective, said Kuehl, who teaches at Loyola Law School in Los Angeles, the woman might feel compelled to act “because she lives in a constant state of danger of death.” As a sign that this argument is gaining ground, the governors of both Ohio and Maryland recently commuted the prison sentences of a number of women convicted of killing or assaulting men who had abused them.

Feminist legal scholars aren’t without fierce disagreements among themselves. On the issue of surrogate motherhood, for example, some believe that such contracts should not be enforceable because they are rooted in the exploitation of poor women, while others feel women should be free to enter into such arrangements.

Less controversial is the notion that men and women have different values, as Carol Gilligan asserted in her celebrated 1982 book, “In a Different Voice.” But many feminists stress that these distinctions do not apply to all men or all women.

Syracuse University’s Bender, one of the scholars seeking to bring the legal system into line with what Gilligan described as an “ethic of care,” has suggested that tort law--the branch dealing with civil damages for accidents and other injuries--be revised so that it is based on a “premise of responsibility rather than rights.”

Under the law, negligence occurs when someone fails to exercise “reasonable care,” such as a motorist who makes an illegal turn or a doctor who fails to meet the standards of his profession. The amount of care required depends on certain factors, including the relationship between the parties and the amount of risk involved. Instead of “reasonable care,” Bender would substitute a standard of “conscious care and concern of a responsible neighbor or social acquaintance for another under the same or similar circumstances.”

If the law required a bystander to rescue someone in danger, Bender says, a neighbor who heard a woman being beaten by her husband night after night might have a legal duty to alert authorities.

Bender also decries a 1989 U.S. Supreme Court decision in a case involving a 4-year-old Wisconsin boy who was so badly beaten by his father that he suffered permanent brain damage. The county department of social services knew about the father’s abusive behavior but took no steps to remove the child from his care. In failing to act, however, the agency did not violate the child’s constitutional rights, the court held.

“It would be inconceivable for a feminist court . . . to ever come up with a decision like that,” Bender said. “There was a blatant need that was not being met.”