Although Jean Cohen's book was originally published in 2002, her argument for a reformulated justification for the right to privacy seems more relevant than ever. The resignation of a key swing vote from the Supreme Court makes feminist concerns about the future of legal abortion seem all the more pressing. As her subtitle—“a new legal paradigm”—suggests, Cohen undertakes an ambitious project of reviving the right to privacy as a key feminist concept, while simultaneously attempting to rethink the nature and use of the law. Defending the reflexive paradigm of law, she argues that neither the liberal nor welfare paradigms of legal action is adequate for formulating solutions to privacy issues tinged with issues of gender equity, including abortion, sexual orientation law, and sexual harassment. The book's strength and weakness is its admirable breadth, as it tackles an impressive pantheon of legal theory, political philosophy, legal doctrine, and substantive legal and political issues. The author successfully refutes the liberal and welfarist paradigms but is less persuasive that the reflexive paradigm offers a way out of the dilemma.

Cohen's text adequately demonstrates that the right to privacy may be divorced from the liberal paradigm of law, requiring a rigid distinction between private and public and often reliant on an inaccurate depiction of atomistic private subjects. Interpreting legal doctrine, the author notes that privacy is an evolving concept that has been modified according to revised ideas about gender, marriage, and sexuality and is best understood as “individual decisional autonomy.” Using this insight, she quite rightly argues that privacy is best understood neither as the prepolitical and idealized space defended in the liberal paradigm nor as the atomistic, contractual space attacked in communitarian critiques.

Cohen's rereading of privacy doctrine as an evolving standard is informed by the reflexive paradigm of law. The penultimate chapter of Regulating Intimacy outlines in detail the strengths and weaknesses of various versions of this paradigm, reading Jürgen Habermas, Ulrich Beck, Gunther Teubner, and Philip Selznick. Cohen's own construction of the reflexive paradigm is drawn from her feminist-inflected reading of privacy doctrine in action. She cleverly describes the key principle as “equal liberty,” or the use of public institutions to enhance the equal right and ability of subjects to exercise their autonomy. Ideally, reflexive law is “receptive to the influence of such publicly articulated values (that everyone can accept!) and subject to the constitutional principles of equal liberty, while leaving the details of the intimate association up to the associates themselves” (p. 202). Rather than being outcome oriented, the reflexive paradigm requires an ongoing public discussion of both the principles we seek to enshrine in law and the question of whether actual legal regimes live up to these goals.

Taking on the task of rethinking both privacy and the law more generally is a Herculean task, and while Cohen does an excellent job of identifying weaknesses in our current understanding, she may not convince the reader about the reflexive paradigm's role as savior of privacy. The theoretical discussion is thorough but the application of the paradigm to the specific problems she has identified is less clear. The open-ended and evolving character of reflexive law may explain this omission—reflexive law dictates processes rather than outcomes—but the theoretical discussion may leave the reader with more questions.

While addressing some of the critiques of the reflexive paradigm, Cohen seems to elide some of the most important issues of power raised, particularly in light of her feminist concerns. As one example, she briefly mentions the concern that the reflexive paradigm may introduce new and more insidious forms of regulation. Her oft-repeated phrase the “regulation of self-regulation” could have been lifted from the Foucaultian discussions of governmentality. Works by authors like Nikolas Rose (The Powers of Freedom: Reframing Political Thought, 1999), Colin Gordon (The Foucault Effect: Studies in Governmentality, ed. Graham Burchell, Colin Gordon, and Peter Miller, 1991), and Barbara Cruikshank (The Will to Empower: Democratic Citizens and Other Subjects, 1991) address precisely this issue, the growing emphasis on self-regulation in ways that use the concept of liberty for the purposes of social control, often in gendered ways.

The problem of power may be reflected in some practical concerns about whether and how a legal paradigm may be effective in resolving some seemingly intractable social conflicts. The chapter on sexual orientation and the concluding chapter on marriage law, written before Lawrence v. Texas (2003), are particularly interesting. Her overall argument about the privatization and marginalization of homosexuality through the law, especially military policy and Bowers, seems correct. However, I was left with the question of why, after the court affirmed a right to privacy relative to sexuality, the underlying logic that enabled the Bowers decision and the military policy has survived as strong as ever in the same-sex marriage debates.

Part of the answer may lie in the reflexive paradigm's optimism about the outcome of public discussion. While rejecting naive and progressive understandings of reflection, Cohen nonetheless retains a great deal of hope about the ability of democratically constituted publics to agree upon the principles of equal liberty and individual decisional autonomy, as well as willingness to reflexively debate societal principles and outcomes. In an era in which the conservative movement advocates both economic privatization and increasing regulation of private choices regarding sexuality, such optimism about reason may be misplaced.

The problem of power is most evident, however, in the final discussion of marriage. Cohen rightly argues that a rejection of a “contract” model of intimate relations, often implied by the liberal paradigm, does not require a return to a “status” model embedded in the traditional hierarchy of the patriarchal family. She argues instead that decisional autonomy requires public acknowledgment of the right to self-regulate in the arena of intimate decisions, including making choices among a range of relations such as domestic partnership. Reading this, I wondered why it is that the gay and lesbian movement has not followed Cohen's suggestion and advocated public support for a range of possible intimate relationships but has, instead, focused upon achieving recognition of traditional marriage, the further institutionalization of an exclusive form of intimacy. While she may be correct that the reflexive paradigm offers a more open-ended and democratic conception of law that enables us to continually revise our legal understandings of concepts like privacy, we must also acknowledge that “decisional autonomy” and the “regulation of self-regulation” are already embedded in relationships of power that are not always so easily vanquished by a paradigm of law.