Copyright (c) 2009 All rights reserved. http://works.bepress.com/tracy_thomas Recent documents in Tracy A. Thomas en-us Sat, 14 Nov 2009 12:19:29 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