A report by the Obama Administration reached a similar conclusion. The report, Women in America: Indicators of Social and Economic Well-Being (March 2011), was the first comprehensive statistical report on how women are faring in the United States since 1963, when the Commission on the Status of Women, established by President Kennedy and chaired by Eleanor Roosevelt, produced a report on the conditions of women. The Women in America report showed that women are working more, that the number of women and men in the labor force has equalized in recent years, and that women’s earnings constitute a growing share of family income. However, it found that gains in labor force involvement by women have not yet translated into wage and income equity. At all levels of education, women earned about 75 percent of what their male counterparts earned in 2009. Women are also more likely to be in poverty than men, in part because of this pay gap, but also because more women than men work part-time and because more unmarried and divorced women have responsibility for supporting their children. The report pointed out that “these economic inequities are even more acute for women of color.”

The evolving picture of women’s role in society may call for new approaches for countering sex discrimination. Legal action has been the vehicle in the past used to eradicate explicit barriers to women’s equal opportunity. This law reform continues today, for example in the Lilly Ledbetter Act of 2009, the first legislation signed into law by President Obama. The Act demonstrated public policy support for equal pay for women, reversing a U.S. Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co. that barred claims for equal pay violations on grounds of statute of limitations. Yet broader proposals to address the pay gap between women and men, like the Paycheck Fairness Act introduced in 2009 by then-Senator Hillary Clinton, have been defeated.

This book collects material that explains the law’s unique intersection with issues that affect women. It previews the trends in the law and the issues dominating the courts and academic thinking. Women and the Law is not just about feminist theory or sex discrimination claims. It is about women’s full social experience from the private sphere of personal choice and family matters to the public sphere of the workplace. This book surveys the many legal issues confronting women and offers recommendations for advocating judicial and legislative change on their behalf.

This Article seeks to situate the current onslaught of abortion laws in their historical context. It does so by returning to two of the earliest Supreme Court cases of indirect abortion regulation in the first trimester, City of Akron v. Akron Center for Reproductive Health and its follow-on case, Ohio v. Akron Center for Reproductive Health. These two cases maneuvered the legal boundaries of first-term regulations with very different results. In the first case, the Court struck down a law imposing obstacles to abortion in the first term and reaffirmed the holding of Roe. Its dissent by the then newly-appointed Justice Sandra Day O’Connor, however, provided the first glimpse that the Court’s abortion jurisprudence might be in doubt. Just a few years later the Court in Akron II upheld the type of first-term restrictions it had previously condemned.

This Article delves into the cases based on original archival research gleaned from old files in dusty basements and interviews with many of the key players in the disputes. It examines the backstory of the case to reveal the depths of conflicting positions and the grassroots mobilization that drove, and continue to drive, the legal negotiation over the acceptable legal standard for abortion.

Feminist Legal History represents feminist legal historians’ efforts to define their field, by showcasing historical research and analysis that demonstrates how women were denied legal rights, how women used the law proactively to gain rights, and how, empowered by law, women worked to alter the law to try to change gendered realities. Encompassing two centuries of American history, thirteen original essays expose the many ways in which legal decisions have hinged upon ideas about women or gender as well as the ways women themselves have intervened in the law, from Elizabeth Cady Stanton’s notion of a legal class of gender to the deeply embedded inequities involved in Ledbetter v. Goodyear, a 2007 Supreme Court pay discrimination case.

Prophylactic remedies, however, can be misused. As discussed in Part III, the Bush Court’s imposition of an untailored, unachievable, and unnecessary prophylactic remedy is an egregious misuses of the remedy and the Court’s equitable power. While prophylactics are inherently broad, that breadth becomes problematic only when it is used to reach conduct unconnected to the violation or to infringe upon the rights of the defendant. This was one of the fundamental errors of the Bush prophylactic remedy, for it reached unconnected conduct and operated to bar the Florida court’s ability to perform its duty to remedy a violation of state law. Moreover, the Court used its flexible equity power designed to achieve justice and fairness to deny rather than ensure effective relief for the federal and state rights. Thus, in unprecedented fashion, the Bush Court used its remedial power to deny relief and nullify important rights rights.

This Article levels two criticisms at the Court’s holding. The primary critique is that the Supreme Court distorted history and equity to reach its result on restitution. Historically, equitable restitution was not restricted to three types of formalistic claims seeking only the return of plaintiff’s specific funds. To the contrary, equity was a flexible legal alternative that issued a variety of monetary remedies in order to address the failure of the hyper-formalist common law courts to redress wrongs. Moreover, despite Justice Scalia’s claim that the Court can easily distinguish between law and equity, it is not a simple task to discern historical rules of equity. The historic development of restitution resulted in significant overlap between equitable and legal restitution, and the historical nuances have been long forgotten. Justice Scalia’s return to the past in defining equitable relief resurrects the outdated distinctions between law and equity and makes them even more significant today. The essay suggests that the dearth of scholarship on historical equity creates a dangerous opportunity for courts, like the Supreme Court in Great-West Life, to issue decisions unguided by accurate knowledge, yet insulated from knowing challenge.

The Article’s second criticism of Great-West Life is that the Court improperly interpreted modern remedial statutory language by historical reference. It suggests that statutory language distinguishing legal and equitable remedies should instead be interpreted by the purpose of the remedy sought. Remedies generally are classified according to their purpose to compensate, punish, disgorge an unjust benefit, or prevent future harm. A purpose test rather than a historical inquiry for defining “equitable relief” more easily delineates the available remedies and avoids the overly formalistic approach taken thus far by the Supreme Court.

This essay attempts to swing the pendulum in the other direction by suggesting that remedial action like that of Brown and its progeny is not only acceptable, but indeed, required judicial action. It argues that a remedy is more than a legal maxim. Rather, this essay argues that the right to a meaningful remedy is a fundamental right protected by the Due Process Clause of the Fourteenth Amendment. Stated simply: Ubi jus, ibi remedium. Where there's a right, there must be a remedy.

The article traces the history of the remedy as a fundamental concept of our ordered liberty from Blackstone to the Federalists to Marbury v. Madison. It argues not only that the right to a remedy has been recognized historically as a fundamental right, but that it should appropriately be considered a fundamental interest under the law. Remedies perform two critical functions in the law: they define abstract rights and enforce otherwise intangible rights. Rights standing alone are simply expressions of social values. It is the remedy that defines the right by making the value real and tangible by providing specificity and concreteness to otherwise abstract guarantees. Relying upon U.S. Supreme Court precedent in cases involving punitive damages and tax remedies, the essay argues that the Court has implicitly recognized the minimum right to a meaningful remedy.

Stanton’s analytical platform attacked the core pretexts of federalism and gender that fueled the proposed marriage amendment in her time. These two concerns, identified in recent scholarship as “institutional anxiety” and “gender ideology,” have similarly dominated modern debates over the Federal Marriage Amendment. The call for marriage amendments in both centuries thrived on the institutional anxiety raised by full, faith and credit issues of interstate recognition created by disparate laws of divorce or gay partnerships. Stanton counters this concern by revealing that a constitutional amendment continues to restrict the power of the states by squelching their local experimentation in democracy and progress. In addition, Stanton deconstructs the pretextual arguments of states’ rights and preservation of the family to reveal the gender bias of perpetuating traditional gender roles in marriage. Today, this argument touts the importance of opposite gendered role models in the family. Stanton exposes the use of gendered roles and their biblical foundations to endorse further governmental discrimination on the basis of sex. Finally, the paper applies Stanton’s most radical notion of marriage as a civil contract to the question of gay marriage. It concludes with Stanton’s recommendation that our wisest course seems to be to leave these questions wholly to the civil rather than to cannon law, the jurisdiction of the several States rather than the nation.

The pretextual use of jurisdiction to restrict remedies has serious implications both within and outside of the tort reform context. The maneuver exceeds the purpose and intent of the legislative power to define and organize the judiciary. Such a violation of the spirit of jurisdictional authority converts the legislature’s power to define the jurisdiction of the courts into a plenary power to regulate, or eviscerate, all remedies and legal rights. This unrestrained legislative power has been challenged in the past as a violation of separation of powers, and legislatures have thus simply circumvented this problem by using their jurisdictional weapon to shackle the judiciary’s ability to act.

However, there is another counterbalancing power that checks the legislative ability to restrict tort remedies through tort reform: the due process clauses of both state and federal constitutions. Pursuing this uncharted line of inquiry, this article argues that due process guarantees provide a restraint on the tort remedy stripping provisions that deny plaintiffs their fundamental right to a meaningful remedy. Building upon prior work asserting the fundamentality of the right to a remedy, this article develops the correlative due process protection mandating heightened review of legislation that burdens or denies the remedial right. This constitutional scrutiny is necessary to hold the legislature accountable to constitutional commands and to provide the necessary transparency and respect for the rule of law. Pulling together the disparate strands of legal rules in existing case law, the article develops a cohesive theory of due process protection for the right to an adequate remedy. State court decisions invalidating tort reform remedy restrictions appear analytically scattered and based upon seemingly narrow doctrinal rules of “quid pro quo,” “due course of law,” or access to the courts. However, upon closer consideration, these cases reveal a common theoretical foundation emanating from due process. When these decisions are compared to U.S. Supreme Court decisions spanning the twentieth century, the right to an adequate and meaningful judicial remedy emerges even more clearly. Locating this due process requirement of an adequate remedy significantly alters the way in which courts currently assess the legality of tort reform legislation. Such a heightened standard does not necessarily sound the death knell for tort reform, but it does demand a more substantial basis for restricting remedies, and it averts the political obfuscation of the significant remedial issues dominating tort reform today.