Copyright (c) 2010 All rights reserved. http://works.bepress.com/tracy_thomas Recent documents in Tracy A. Thomas en-us Tue, 26 Jan 2010 14:22:07 PST 3600 http://works.bepress.com/tracy_thomas/23 http://works.bepress.com/tracy_thomas/23 Fri, 11 Sep 2009 13:43:29 PDT A student study aid consisting of 200 multiple choice questions in remedies. Tracy A. Thomas Remedies http://works.bepress.com/tracy_thomas/22 http://works.bepress.com/tracy_thomas/22 Fri, 11 Sep 2009 13:36:08 PDT In March 2009, ailing insurance giant triggered a national outcry when it paid out $165 million in government bailout funds for employee bonus incentives. President Obama called the bonus payments an "outrage" and promised that his administration would "pursue every single legal avenue to block these bonuses and make the taxpayers whole." One possible answer lies with the remedy of restitution. Restitution, based on unjust enrichment, provides a common law solution that just might work. Unjust enrichment is a remedy directed at the defendant that requires the wrongdoer to return all ill-gotten gains. The goal is to return the defendant to the position it would have been in but for the wrongdoing, and prevent it from profiting at the plaintiff's expense. While some might consider the idea of an unjust enrichment remedy a "hail Mary" pass, this longshot provides a good analytical foundation to funnel the public outrage towards a legal resolution based on justice. Tracy A. Thomas Remedies http://works.bepress.com/tracy_thomas/21 http://works.bepress.com/tracy_thomas/21 Fri, 11 Sep 2009 13:27:08 PDT The battle for women's right to vote raged for almost seventy-five years before culminating in the Nineteenth Amendment to the U.S. Constitution in 1920. The U.S. Supreme Court initially interpreted the amendment broadly to give women general rights of equality. However, the Court soon retreated from this position, rendering the Nineteenth Amendment a narrow and silent actor in Supreme Court jurisprudence. This encyclopedia entry provides an overview of the history and development of the advocacy leading to the Nineteenth Amendment and the subsequent interpretation of that amendment in the courts. Tracy A. Thomas Legal History Gender and the Law http://works.bepress.com/tracy_thomas/20 http://works.bepress.com/tracy_thomas/20 Fri, 11 Sep 2009 13:20:07 PDT This book is an edited collection of essays by scholars in law, history, and women's studies that offers new historical and feminist perspectives on law and applies these insights to many of the legal and social policy issues of today. The collection takes as its primary goal an exploration of women's historical use of the law to advocate and develop the notion of gender equality as constitutionally guaranteed. Throughout, the question of women's individual agency - the ability to make decisions for themselves and control their own lives - is involved in their legal appeals. The book reveals the interrelationship between the law and women's agency, from the law's denial of individual autonomy, to its contemporaneous facilitation of that agency, to women's use of that agency to transform the law itself. Contributing authors employ the core theme in a variety of historical contexts to reframe and illuminate such topics as women's rights in the family, military, labor market, and the courts. Feminist developments of the law are traced from these historical settings through their transformative effect on modern social justice movements such as public interest lawyering and problem-solving courts.The book proceeds in two parts to explore the reciprocal relationship between women's agency and the law. Part I of the book, Contradictions in Legalizing Gender, begins with the conventional narrative that depicts law as a barrier to gender equality, and identifies the perpetuation of these limitations to present day. Contributors investigate situations such as marriage, abortion, and the military where courts have denied women rights despite their claims of equality with men. The extent of this gendered limitation in the law, and its continuation today in the face of women's assumed equality and attainment of many other legal and political rights, reveals the entrenchment of gendered assumptions in the law. The essays in part I, however, suggest a secondary, and seemingly contradictory, development in the historical picture, one in which women encountered responsive courts that acknowledged their agency and social power. For despite the constraints and limitations of the law, women continued to resort to the legal process to challenge social norms. Illustrating this point, contributors explore the subjects of temperance, tort, marriage (Walker), and governmental benefits. This section includes considerations of many salient issues facing lawyers, feminists, and legal scholars today, including the relevance of family law to women's gender-based political activism, conservative women's appeal to the courts for social reform, and constitutional activism inherited from early feminists. Part II of the book, Women's Transformation of the Law, shows how women used their developed agency to change the law itself to respond to gendered realities. Women's legal activism effectively altered the traditional concepts of the law and the legal process in many contexts by re-conceptualizing the basic legal notions of fairness and justice. Chapters here examine the historical forces shaping women's experience as lay lawyers and as agents of public interest lawyering, the issues surrounding the "feminization" of courts, the creation of a legal class of "gender," and the establishment of new laws responsive to women's reality, including sexual harassment law and equal pay. Women transformed the law itself as women's experience was incorporated into the legal standards. Tracy A. Thomas Legal History Gender and the Law http://works.bepress.com/tracy_thomas/19 http://works.bepress.com/tracy_thomas/19 Fri, 30 Jan 2009 12:12:32 PST Women's legal history is developing as a new and exciting field that provides alternative perspectives on legal issues both past and present. Feminist legal history seeks to examine the ways in which law historically has informed women's rights and how feminist discourse has shaped the law. This short essay quickly traces the development of women's legal history as a field, and then introduces the papers from a symposium at the University of Akron School of Law. The Akron Constitutional Law Center oranized a conference in October 2007 entitled "The New Face of Women's Legal History" to showcase many of the seasoned and emerging scholars in the field. The articles included in this symposium edition and introduced here provide an excellent sampling of the promising work underway in this nascent field. They each explore women's historical use of the law to advance feminist discourse. True to the theme of the conference, the papers evidence the new ways in which feminist scholarship is developing to integrate issues of race, gender, and historical analysis into the legal scholarship. Tracy A. Thomas Legal History Gender and the Law http://works.bepress.com/tracy_thomas/18 http://works.bepress.com/tracy_thomas/18 Thu, 08 May 2008 11:04:41 PDT The struggle between Hillary Clinton and Barak Obama to make history as either the first woman or first African-American president resurrects the unfortunate historic battle between sex and race. The fallout from this false dichotomy is potentially disastrous for both political credibility and social justice. At least it was in the battle for voting rights after the Civil War. Then, the infighting between abolitionists over race and sex created deep separatism that pitted allies against each other and diluted their political strength. In the late nineteenth century, women's rights leaders like Elizabeth Cady Stanton and Susan B. Anthony battled black men for the right to vote, creating enemies out of allies and perpetuating racist and sexist tropes. The Clinton-Obama contest now unfolding in the media sets up this same false choice between race and sex and continues the historical jousting for power between black men and white women. Tracy A. Thomas Legal History Gender and the Law http://works.bepress.com/tracy_thomas/17 http://works.bepress.com/tracy_thomas/17 Sat, 16 Feb 2008 08:51:17 PST From a remedial perspective, the decision of the U.S. Supreme Court in eBay Inc. v. MercExchange, L.L.C reopened the age-old question of what it means to award equitable relief. In eBay, the Court rejected a permanent injunction issued by the U.S. Court of Appeals for the Federal Circuit to protect a business-method patent that defendant eBay had infringed on its successful auction website. This essay diagnoses the remedial problem in eBay as the improper use of presumptions for equitable relief that effectively prioritizes selected legal rights. It offers a prescriptive cure for the problem in the traditional balancing of the equities standard that emphasizes the respective equities of the private parties, including their economic motivations and inequitable conduct. This signifies a return to the historical notion of equity as a legal accommodation of private and public interests in pursuit of justice. Tracy A. Thomas Remedies http://works.bepress.com/tracy_thomas/16 http://works.bepress.com/tracy_thomas/16 Fri, 28 Sep 2007 15:59:32 PDT This entry for the Encyclopedia of American Civil Liberties traces the civil rights work of Elizabeth Cady Stanton in suffrage, marriage, and religion. Tracy A. Thomas Legal History http://works.bepress.com/tracy_thomas/15 http://works.bepress.com/tracy_thomas/15 Fri, 28 Sep 2007 15:44:46 PDT One of the most valuable assets in a dissolution case today is an employee stock option (ESO). An ESO is a contractual right granted to an employee to purchase the stock of her corporate employer during a designated period of time at a predetermined price. The law, however, has failed to keep up with this modern form of employee compensation and indeed has struggled to understand this new form of property in the context of dividing and distributing marital property. Only fourteen state supreme courts to date have spoken on any aspect of this complex issue, and of these, only a handful have analyzed the relevant issues in any meaningful way. This article thus delineates the emerging lines of reasoning in an attempt to direct the legal analysis as consideration of the ESO in dissolution percolates through the courts. Tracy A. Thomas Family Law http://works.bepress.com/tracy_thomas/14 http://works.bepress.com/tracy_thomas/14 Fri, 28 Sep 2007 15:00:31 PDT This is not just another article about Bush v. Gore. Rather, this article does something that no article has done: it analyzes the impact of the textual decision in Bush v. Gore on the law of remedies. Through an examination of Bush v. Gore, this article seeks to advance a new understanding of prophylactic remedies and their proper use by the courts. This examination provides not only a clearer understanding of the Bush decision, but more importantly, develops a better understanding of prophylactic remedies and how they can legitimately be used to provide meaning and redress for legal rights. This article will first examine the decision of Bush v. Gore under the microscope of remedies law. As discussed in Part I, the Court used the remedial weapon of the prophylactic injunction to constrain the actions of a state court in order to protect against potential equal protection violations during any future recount. Yet, the Court ultimately used this expansive remedy dictating mandatory recount standards to deny effective relief for both the equal protection or election violation. The Court's decision to impose the prophylactic remedy, however, was unguided by meaningful standards and drastically departed from previously-existing standards constraining the use of this powerful remedy. The blatant use of remedial power and the potential creation of a new remedial standard is what makes this case interesting for the broader context of remedies and constitutional law. The Bush Court's use of a prophylactic remedy in itself, however, is not problematic. Prophylactic remedies have unfairly become the miscreant of judicial relief. Part II of this article discredits these attacks on the legitimacy of prophylactic relief by explaining that prophylactics are remedies rather than rules. For since the time of Miranda, critics have claimed improperly that the Court lacks power to issue these types of decisions proscribing otherwise legal conduct. Yet formulating a remedy for a legal violation is one of the common judicial roles that the court is authorized to perform. And prophylactics are simply one species of remedy. 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. Tracy A. Thomas Remedies http://works.bepress.com/tracy_thomas/13 http://works.bepress.com/tracy_thomas/13 Fri, 28 Sep 2007 14:39:57 PDT This essay criticizes the U.S. Supreme Court's re-conceptualization of equitable restitution in the case of Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204 (2002). In Great-West, a divided Court in an opinion by Justice Scalia held that "equitable relief" authorized by the Employee Retirement Income Security Act of 1974 (ERISA) does not include claims for specific performance or restitution seeking money for breach of contract. Instead, the Court held that with respect to restitution, the term "equitable relief" includes only those restitutionary remedies which were historically available in courts of equity. 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. Tracy A. Thomas Remedies http://works.bepress.com/tracy_thomas/12 http://works.bepress.com/tracy_thomas/12 Fri, 28 Sep 2007 14:28:09 PDT This essay is part of a symposium comprised of international remedies scholars addressing the topic of equitable relief in the fifty years since Brown v. Board of Education. It may be true as other scholars have argued that since the time of Brown, institutional defendants have won at the expense of plaintiffs. Defendants have learned that delay and defiance work. The U.S. Supreme Court has adopted a standard for ordering equitable relief that significantly defers to defendant wrongdoers at the plaintiffs' expense. Epithets of "activist courts" and "judicial legislation" have colored the existing scholarship and portrayed remedial action as illegitimate and excessive judicial power. And the recent barrage of school funding cases demonstrates the same resistance to court-ordered conduct as seen in Brown. 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. Tracy A. Thomas Remedies http://works.bepress.com/tracy_thomas/11 http://works.bepress.com/tracy_thomas/11 Sat, 22 Sep 2007 13:44:22 PDT This essay written from a historical, first-person perspective explores the parallels between the current movement for a Federal Marriage Amendment and that of the nineteenth century through the lens of feminist Elizabeth Cady Stanton. Using the archival sources of Stanton's articles and speeches from 1880 to 1902, the paper identifies her key arguments opposing a constitutional standard of marriage. The paper then juxtaposes Stanton's arguments against the 2004 Federal Marriage Amendment to reveal the continued relevance and import of her insights. 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. Tracy A. Thomas Legal History Gender and the Law Family Law http://works.bepress.com/tracy_thomas/10 http://works.bepress.com/tracy_thomas/10 Sat, 22 Sep 2007 13:22:12 PDT In the recent proliferation of tort reform statutes, the dangerous clause of remedial jurisdiction stripping has sneaked into the law. Reminiscent of federal statutes in other areas of the law, these jurisdictional provisions strip courts of all power to award punitive or non-pecuniary damages in excess of legislative limits. Many states have acted to restrict frivolous claims and excessive recoveries by cabining "McTorts" and "runaway juries." Regardless of the merits of these policy questions, the use of the simple expedient of remedial jurisdiction to accomplish these purposes raises significant concerns. By arbitrarily restricting an individual's right to a meaningful remedy, the tort reform remedy restrictions threaten to dilute common-law rights. 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. Tracy A. Thomas Remedies http://works.bepress.com/tracy_thomas/9 http://works.bepress.com/tracy_thomas/9 Sat, 22 Sep 2007 13:06:30 PDT There has been continual conflict between the legislative and judicial branches regarding the authority of Congress to enact remedies for the violation of constitutional rights. Armed with the assumption that it has unlimited authority to define remedies, Congress has sought to enact legislation to alter constitutional remedies imposed by the courts. At the same time, the Supreme Court has narrowly interpreted the scope of Congress' so-called "remedial" or enforcement power under Section 5 of the Fourteenth Amendment. The legal question explored in this article is how to balance this conflict of power and resolve the respective roles of each branch in dictating remedial rights for constitutional violations. This article concludes that Congress is limited under Section 5 to enacting prophylactic and proportional remedies that are adequate substitutes for judicial remedies that give meaning and life to judicially-defined constitutional guarantees. In fleshing out this thesis, the article derives a framework from the modern proliferation of Supreme Court cases related to this question of congressional determination of remedial rights. The framework is more descriptive than normative, as it attempts to review the recent cases and the glimmers of suggestions provided by the Court in order to discern a more workable approach to reconciling the judicial and legislative remedial powers. Critical to this conclusion is an appropriate jurisprudential understanding of remedies as part of the unified right, rather than a secondary, tangential mechanism. Thus, the article begins by exploring the nature of remedies and criticizing their conceptualization under essentialist theories as something other than the operative primary right. Tracy A. Thomas Remedies http://works.bepress.com/tracy_thomas/8 http://works.bepress.com/tracy_thomas/8 Wed, 19 Sep 2007 18:26:25 PDT In Never Seen the Moon, journalist Sharon Hatfield chronicles the story of school teacher Edith Maxwell accused of murdering her coal-miner father in depression-era Appalachia. Hatfield's detective work brings together the threads of this story to provide a mystery novel using the headlines and trial transcripts from real life. There are surprises to rival a John Grisham novel as Hatfield tells the legal tale of the young and vibrant Edith battling her raging father. The book journeys through the trials and appeals as two juries of twelve men convict Edith of murder and sentence her to a lifetime in prison. Never Seen the Moon seeks to integrate this account of Edith's trials into a social commentary on Appalachia, yellow journalism, and women's rights. Hatfield's book offers an interesting foray into the newspapers of yesteryear bringing to light difficult questions of battered women's self-defense and media involvement in criminal trials that continue to plague the legal profession today. However, the review concludes that the book disappoints in its claim to analyze the gender issues of this era. The author's focus on Edith's strategic failure to focus her criminal appeals on the jury question misses the critical issue of what impact a "jury of her peers" might have had for Edith. Tracy A. Thomas Legal History Gender and the Law http://works.bepress.com/tracy_thomas/7 http://works.bepress.com/tracy_thomas/7 Wed, 19 Sep 2007 18:17:32 PDT This essay reviews the recent book, The Beecher Sisters by Barbara White, through the lens of feminist theory. It argues that each of the three great women chronicled in the book - Catharine Beecher, Harriet Beecher Stowe, and Isabella Beecher Hooker - serve as icons for each of the distinct strands of modern feminist thought. Barbara White, a professor emeritus of women's studies at the University of New Hampshire, has given the field of women's legal history a boost with her interdisciplinary contribution to the social and legal history of women. In The Beecher Sisters, White introduces us to each of three famous Beecher sisters: Catharine Beecher (1800-1878), known for her advocacy of women and education; Harriet Beecher Stowe (1811-1896), famous for her literary works against slavery including Uncle Tom's Cabin; and their half-sister, Isabella Beecher Hooker (1822-1907), recognized for her work as a cohort of Elizabeth Cady Stanton and Susan B. Anthony in the women's suffrage movement. The trilogy of female lives presented by White reveals the polarization of the sisters on views ranging from feminism to religion to their brother's veracity. The book highlights the dichotomy of Isabella as the liberal equality feminist versus Catharine as the so-called "anti-feminist" and advocate of the domestic sphere. It compares Catharine's religious orthodoxy to Harriet's Christian ideology as contrasted with Isabella's spiritualism and séances. And it explores the sisters' conflicting views of the innocence of their brother, Henry Ward Beecher, in the infamous Beecher-Tilton adultery trial, the OJ Simpson trial of the nineteenth century.White's biographical story provides ample evidence to support the conclusion advanced by this review that each Beecher sister embodied one particular school of thought within the larger umbrella of feminism. The essay argues that the evidence provided by White's book of the sisters' individual approaches to women's rights do not reflect a disagreement with feminist principles, as has been suggested by others. Instead, it argues that the distinctions situate each woman's philosophy within a different strand of feminist thought. Isabella represents the classic equality feminist arguing that women are the same as men for purposes of voting and marital rights. Catharine symbolizes the difference feminist and the emphasis on a different voice and focus for women. And Harriet epitomizes the pull and tug between these two schools of thought, resulting in her ultimate adoption of a theory of individual choice akin to the libertarian feminists. At the end of the book, the picture that emerges is one of the Beecher sisters together as the depiction of the state of feminism in the twenty-first century. The modern approach to feminist theory is to avoid one essential view of women and feminism, and instead to recognize a variety of different strands of approaches woven together in the fabric of feminist theory. The Beecher Sisters provides a historical foundation for this multiple-strand theory supplying evidence of a nineteenth-century origin of three strands of feminist theories - sameness, difference, and libertarian feminism. Tracy A. Thomas Legal History Gender and the Law http://works.bepress.com/tracy_thomas/6 http://works.bepress.com/tracy_thomas/6 Wed, 19 Sep 2007 16:47:28 PDT This article is the first complete normative and descriptive treatment of the modern civil rights remedy -- the prophylactic injunction. The prophylactic remedy is a public law injunction that uniquely restricts legal conduct that is affiliated with, but distinct from, the illegal wrong. The United States Supreme Court has utilized prophylactic remedies for over forty years, and has used the prophylactic paradigm to shape its jurisprudence on Section 5 of the Fourteenth Amendment. Prophylaxis, however, remains an ambiguous concept in the eyes of most scholars and lawyers. This article attempts to fill the academic void by exploring the doctrinal and theoretical parameters of the prophylactic remedy. By so doing, it attempts to establish a framework for the use of prophylactic remedies by the courts and to deflate the criticism of certain skeptics who mischaracterize such remedies as overly broad misuse of judicial power. Ultimately, the article has two goals. The primary purpose of the article is to provide an analytical framework that will enable judges, lawyers, and scholars to understand the contours of prophylactic relief. Accordingly, the article identifies trans-substantive remedial principles of prophylactic relief apparent in modern Supreme Court precedent regarding the appropriate character, scope, and use of prophylactic relief. The second and more ambitious goal of the paper is to dispel the myth that prophylactic relief is an overly broad remedy arising from the judge's personal political activism. A close analysis of the Supreme Court's decisions demonstrate quite the contrary -- that prophylactic remedies are based upon solid doctrinal and theoretical principles legitimizing its continued use as a viable and necessary remedy. Tracy A. Thomas Remedies http://works.bepress.com/tracy_thomas/5 http://works.bepress.com/tracy_thomas/5 Wed, 19 Sep 2007 16:03:19 PDT The categorization of a separate type of "prophylactic" injunction and its continued prevalence in the courts provides a framework by which to evaluate the legitimacy of broad injunctions. Such broad injunctive relief has been conventionally theorized as simple judicial activism, and has been attacked accordingly. The theory of prophylaxis provides an alternative narrative by which to evaluate injunctive relief in order to retain valuable and effective judicial remedies. Rather than striking down all broad injunctive relief as the dominant discourse demands, the concept of the prophylactic injunction provides language through which jurists and lawyers can navigate the real issues of crafting appropriate injunctions. Tracy A. Thomas Remedies http://works.bepress.com/tracy_thomas/4 http://works.bepress.com/tracy_thomas/4 Tue, 18 Sep 2007 10:24:06 PDT The evolution of the Supreme Court's remedial jurisprudence evinces a quest for the ultimate judicial measure of appropriate relief, emerging as a norm of remedial proportionality. The Court's decisions since 2000 on punitive damages, injunctions, and remedial legislation, all mandate a strict balance and precise measurement in the formulation of civil remedies. These cases have often fallen below the radar of general interest or have been ignored for their remedial significance. However, these cases demonstrate, somewhat surprisingly, the manner in which the Court has ventured into the arena of common-law remedies to unexpectedly alter the foundational principles of crafting remedies. This article exposes and critiques the extent to which proportionality dominates the remedial decisions of the United States Supreme Court in the new millennium. "Proportionality" is fast becoming a universal standard of rationality in the international public law context. Indeed, "[t]he concept has received far more elaboration and evaluation outside of the United States." Proportionality is a general legal principle for avoiding excess and "reviewing the conformity to the law of any public discretionary action." It is a "yardstick for measuring the appropriate relationship between the ends and the means of discretionary action." International jurists use proportionality to evaluate the extent to which government intrudes on the paramount individual rights of citizens. However, American legal scholars have not embraced the advent of this new test because it "sounds unfamiliar, dangerous for the protection of civil rights, and illustrative of the conservatism of the Court." These fears appear well-founded as the Supreme Court has co-opted proportionality as its own standard for protecting governmental and corporate interests against the individual plaintiff. The article begins by taking a positivist view to describe how the Court has utilized proportionality in its remedial decisions. It first explains the Court's theory of remedial essentialism, which forms the foundation for the rule of remedial proportionality. The theory of remedial essentialism formalistically separates the remedy from the right, and it is this binary concept that establishes the premise of balance inherent in proportionality. This notion of balance or equilibrium draws on theories from Aristotle and law and economics mandating a precise remedial balance as a proxy for justice. Practically speaking, the rule of proportionality engages the court in a type of "Three Bears" analysis under which it evaluates whether the remedy is too big, too small, or just right. The article synthesizes the most recent Supreme Court cases on remedies to flesh out the principles of proportionality driving the Court's decisions. These remedial decisions emanate from a wide variety of factual contexts, including abortion, water rights, insurance, patents, and tribal immunity. Yet, the decisions coalesce in transsubstantive fashion around the assumed foundational truth of remedial proportionality as the ultimate measure of civil justice. After tracing the development of strict proportionality in the Supreme Court, the article then engages in a normative analysis to evaluate whether proportionality should in fact be the guiding principle of remedies law. It begins with the identification of the Court's justifications for the rule. The Court seems to value proportionality for its rationality and objectivity, judicial restraint and minimalism, and reciprocal response. However, the article reveals these claims of rationality, restraint, and reciprocity as myths. Proportionality is not an objective standard. Continued reliance upon these myths creates significant legal dangers by obscuring the subjective framing issues inherent in a rule of comparison and unduly deferring to the interests of the wrongdoers. When the rule of proportionality is deconstructed, it becomes apparent that proportionality is not a rule of restraint, but rather one of activism. The article ultimately rejects the continued use of remedial proportionality and its fostering of judicial activism by the highest Court. Instead, it recommends a return to the traditional judicial review of remedies deferring to the initial factfinders in each case. Tracy A. Thomas Remedies