Presents an approach to regulating intimacy that promises to defuse the tensions that have sparked conflict among legislators, jurists, activists, and scholars. Can law stay out of the bedroom without shielding oppression and abuse? This book present a defense of privacy, based on the idea that norms and rights are legally constructed.

Acknowledgments ix Introduction 1 Overview 5 CHAPTER ONE: Constitutional Privacy in the Domain of Intimacy: The Battle over Reproductive Rights 22 The Feminist Egalitarian Critique of Privacy Analysis 28 The Communitarian Critique 42 Privacy as Decisional Autonomy: The Isolated, Disembedded Self? 44 Privacy and Identity 49 A Constructivist Justification of the New Privacy Rights 52 The Scope of Privacy: Bringing the Body Back In 57 Excursus: On Property, Privacy, and Legal Paradigms 64 Conclusion 74 CHAPTER TWO: Is There a Duty of Privacy? Law, Sexual Orientation, and the Dilemmas of Difference 77 The Neo-Republican Revival of Privacy Discourse 78 The "New Military Policy": Privacy Protection for Gays and Lesbians? 84 The Right to Privacy and the "Epistemology of the Closet" 86 The Construction of a Stigmatized Identity: Bowers v. Hardwick 94 The Personhood Justification: Normative Paradoxes 97 The Libertarian Solution: Morally Indifferent Sex and the Harm Principle 101 Conclusion 116 CHAPTER THREE: Sexual Harassment Law: Equality vs. Expressive Freedom and Personal Privacy? 125 The Development of Sexual Harassment Law 127 The Hegemonic Feminist Sex-Desire/Subordination Model 129 Liberal Objections 132 Liberal Feminist Alternatives: Redefining the Harm 134 Postmodern Feminist Reframings: Criticizing Legal Normalization 136 Postmodern Feminist Reframings, Part 2: Redescribing the Role of Law 139 Legal Paradigms: An Explanation and a Way Out? 142 Conclusion 149 CHAPTER FOUR: The Debate over the Reflexive Paradigm 151 The Systems-Theoretical Model of Reflexive Law 153 The Action-Theoretical Approach: A Procedural Paradigm 157 A Proposed Synthesis: The Sociological Reflexivity Model 164 Responsive Law 169 Dangers of Reflexive/Procedural/Responsive Law: Arbitrariness and/or Normalization 172 Reconceptualizing the Reflexive Paradigm: A Synthetic, Pluralist Approach 175 CHAPTER FIVE: Status or Contract? Beyond the Dichotomy 180 The Traditional Status Regime Regulating Intimacy 182 Privatization of Family Law 184 The Communitarian Critique of Private Ordering: Toward a New Status Order 187 The Limits of Status 196 Conclusion 197 Notes 205 Cases Cited 261 Bibliography 263 Index 279

"Cohen's work brings new substance and new clarity to claims for the proceduralization (or reflexivity) of law. Cohen denies the independence of political-moral orientations from idealizations of the legal form and the background models of individual, society, and state that motivate such idealizations. She shows convincingly how the legal-formal idealizations native to a debate between classical and welfare liberalism inevitably mistranslate and miscarry the distinctive aims of a constructivist, deontological liberalism that differs crucially from them both."—Frank Michelman, Harvard University

"I have read Regulating Intimacy with much pleasure and profit. Professor Cohen illuminates the conceptual and policy issues that arise when we try to encourage intimate associations that are both free and responsible. This is a welcome contribution to the integration of moral and social theory. It deals extensively with contemporary legal doctrine, and helps us make sense of new thinking about law and society."—Philip Selznick, author of The Communitarian Persuasion

"Cohen has written an enormously impressive contribution to legal and political scholarship sure to be of interest to a broad audience of scholars, policy makers, and activists. Creatively borrowing from recent debates within European legal theory about the prospects of a 'reflexive paradigm' of regulation, she demonstrates persuasively why traditional views of the proper legal treatment of the domain of intimacy need to be reformulated. Those interested in a host of ongoing legal debates about privacy and sexuality will find answers to many of their questions here. Cohen has authored a genuinely pathbreaking work which should influence policy and judicial decisionmaking."—William E. Scheuerman, University of Minnesota

"This is a bold, exciting, novel defense of privacy law. Cohen's learned approach to arguing that privacy is neither arbitrary nor archaic engages a surprisingly wide range of important contemporary thinkers. Her selection of case studies is timely and of great interest—giving the book immediate practical value. It will attract many readers and critics."—Anita Allen, University of Pennsylvania

Cohen's work brings new substance and new clarity to claims for the proceduralization (or reflexivity) of law. Cohen denies the independence of political-moral orientations from idealizations of the legal form and the background models of individual, society, and state that motivate such idealizations. She shows convincingly how the legal-formal idealizations native to a debate between classical and welfare liberalism inevitably mistranslate and miscarry the distinctive aims of a constructivist, deontological liberalism that differs crucially from them both. -- Frank Michelman, Harvard University I have read Regulating Intimacy with much pleasure and profit. Professor Cohen illuminates the conceptual and policy issues that arise when we try to encourage intimate associations that are both free and responsible. This is a welcome contribution to the integration of moral and social theory. It deals extensively with contemporary legal doctrine, and helps us make sense of new thinking about law and society. -- Philip Selznick, author of "The Communitarian Persuasion" Cohen has written an enormously impressive contribution to legal and political scholarship sure to be of interest to a broad audience of scholars, policy makers, and activists. Creatively borrowing from recent debates within European legal theory about the prospects of a 'reflexive paradigm' of regulation, she demonstrates persuasively why traditional views of the proper legal treatment of the domain of intimacy need to be reformulated. Those interested in a host of ongoing legal debates about privacy and sexuality will find answers to many of their questions here. Cohen has authored a genuinely pathbreaking work which should influence policy and judicial decisionmaking. -- William E. Scheuerman, University of Minnesota This is a bold, exciting, novel defense of privacy law. Cohen's learned approach to arguing that privacy is neither arbitrary nor archaic engages a surprisingly wide range of important contemporary thinkers. Her selection of case studies is timely and of great interest--giving the book immediate practical value. It will attract many readers and critics. -- Anita Allen, University of Pennsylvania