Copyright (c) 2009 All rights reserved. http://works.bepress.com/tracy_thomas Recent documents in Tracy A. Thomas en-us Mon, 05 Jan 2009 14:06:49 PST 3600 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