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Abstract:
This essay is part of the 2003 Remedies Forum 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.

Due process, remedy, injunction, education, punitive damages

Abstract:
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 demonstrates quite the contrary - that prophylactic remedies are based upon solid doctrinal and theoretical principles legitimizing its continued use as a viable and necessary remedy.

prophylactic, remedies, Supreme Court, equity, constitutional, civil rights

Abstract:
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, yet they remain ambiguous concepts 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.

prophylactic, remedies, Supreme Court, equity, constitutional, civil rights

Abstract:
Hidden within the latest generation of tort reform laws is the dangerous clause of remedial jurisdiction stripping. Reminiscent of federal statutes in other areas of the law, these jurisdictional provisions in tort reform strip courts of all power to award punitive or nonpecuniary damages in excess of legislative limits. While many states have acted to address the policy questions of McTorts and runaway juries, the use of the simple expedient of remedial jurisdiction to accomplish these purposes raises significant concerns. The tort reform remedy restrictions work arbitrarily to restrict an individual's right to a meaningful remedy that threatens to dilute common-law rights. This article argues that the Due Process Clause provides a restraint on the jurisdiction stripping provisions of recent tort reform statutes that deny plaintiffs a fundamental right to a meaningful and adequate remedy. As part of a symposium of Remedies scholars, the article seeks to contribute to the larger discourse on remedial perspectives on tort damages.

The article first argues that the legislative action of tort reform remedy stripping exhibits a misuse of jurisdictional defining power. While remedy stripping is often a politically expedient way to legislate, its pretextual use of remedies rather than rights is formalistically dishonest and insulates representatives from the political accountability that should follow as a consequence of legislative action in a democracy. Furthermore, the remedial 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. Legislatures have thus acted to circumvent these structural barriers by using their jurisdictional power to shackle the judiciary's ability to act.

The article argues that such legislative misuse of jurisdictional power is held in check by the substantive protections of the Due Process Clause. Building upon prior work asserting the fundamentality of the right to a remedy, this article develops the correlative due process protection for this fundamental right mandating heightened review of legislation that burdens or denies the remedial right. 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 look, 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 does demand a more substantial basis for restricting remedies and averts the political obfuscation of the significant remedial issues dominating tort reform today.

tort reform, due process, jurisdiction

Abstract:
This article exposes and critiques the development of the U.S. Supreme Court's cases on civil remedies since 2000. In these cases - on punitive damages, injunctions, and Section 5 remedies - proportionality emerges as the juridical norm. Proportionality mandates a strict balance and precise measurement in the formulation of civil remedies. At the international level, proportionality is a universal standard of rationality for courts evaluating the appropriateness of governmental intrusion on individual rights. American scholars have been wary of proportionality because of its potential for working against the protection of civil rights. These fears appear well-founded in the remedial cases where the Court has utilized proportionality to protect governmental and corporate interests against those of the individual. The remedial cases demonstrate the extent to which the Court has ventured into the arena of common-law remedies and, unexpectedly, altered the foundational principles of crafting relief.

This article first takes a positivist approach to describe the Court's application of proportionality in recent cases. It explores the Court's decisions in cases such as eBay, Ayotte, Sherrill, Campbell, and Hobbs. In these cases, the Court appears to be searching for the perfect balance of right and remedy as it rejects alternative remedial measures that are deemed excessive. The mandated balance is premised on the Court's theory of remedial essentialism in which the remedy is formalistically distinct from the right.

The article then engages in a normative analysis to evaluate whether proportionality should in fact be the guiding principle of remedies law. The Court appears to value the remedial proportionality rule for its rationality and objectivity, judicial restraint and minimalism, and reciprocal response. However, these justifications are myths: remedial 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 that should be abandoned.

Supreme Court, remedies, jurisprudence, punitive damages, civil rights injunctions

Abstract:
This article exposes and critiques the development of the U.S. Supreme Court's cases on civil remedies since 2000. In these cases - on punitive damages, injunctions, and Section 5 remedial legislation - proportionality emerges as the juridical norm. Proportionality mandates a strict balance and precise measurement in the formulation of civil remedies. At the international level, proportionality is a universal standard of rationality for courts evaluating the appropriateness of governmental intrusion on individual rights. American scholars have been wary of proportionality because of its potential for working against the protection of civil rights. These fears appear well-founded in the remedial cases where the Court has utilized proportionality to protect governmental and corporate interests against those of the individual. The remedial cases demonstrate the extent to which the Court has ventured into the arena of common-law remedies and, unexpectedly, altered the foundational principles of crafting relief.

This article first takes a positivist approach to describe the Court's application of proportionality in recent cases. It explores the Court's decisions in cases such as Ebay, Ayotte, Sherrill, Campbell, and Hobbs. In these cases, the Court appears to be searching for the perfect balance of right and remedy as it rejects alternative remedial measures that are deemed excessive. The mandated balance is premised on the Court's theory of remedial essentialism, in which the remedy is formalistically distinct from the right.

The article then engages in a normative analysis to evaluate whether proportionality should in fact be the guiding principle of remedies law. The Court appears to value the remedial proportionality rule for its rationality and objectivity, judicial restraint and minimalism, and reciprocal response. However, these justifications are myths: remedial 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 that should be abandoned.

Supreme Court, remedies, civil rights, punitive damages, injunctions

Abstract:
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 canon law, the jurisdiction of the several States rather than the nation.

marriage amendment, legal history, gender, federalism

Abstract:
This essay written as a first-person narrative 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 two core concerns that supported the marriage amendment in both eras: institutional anxiety and gender ideology. The call for marriage amendments in both centuries thrived on 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. 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 canon law, the jurisdiction of the several States rather than the nation.

marriage, legal history, women, same-sex marriage, gender

Abstract:
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 seances. 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.

feminist theory, women, legal history

Abstract:
This is not just another article about Bush v. Gore. Rather, this article does something that no article to date has done: it analyzes the impact of the textual decision in Bush v. Gore on the law of remedies. For the first time, an article examines the actual text of the decision to reveal that it holds important precedent regarding remedies for constitutional and voting rights. The area of remedies law is often ignored in legal scholarship. Thus, this article hopes to contribute to the legal academy by addressing the important area of remedies for constitutional violations through a timely and interesting example of Bush v. Gore. The article applies the unified right theory of remedies I first developed in Congress' Section 5 Power and Remedial Rights, 34 U.C. DAVIS. 673 (2001) to the unprecedented use of a prophylactic remedy in Bush v. Gore.

In this article Understanding Prophylactic Remedies, I explain the relatively new legal concept of a prophylactic remedy and argue that it was inappropriately used in Bush v. Gore. Prophylactic remedies have become the miscreant of judicial relief as often the term "prophylactic" is used to describe illegitimate judicial action. However, I take issue with these critics, arguing instead that prophylactic remedies are legitimate exercises of the judicial power to remedy wrongs. The problem in Bush v. Gore, in my view, was the misuse of the powerful prophylactic remedy. The Supreme Court in its decisions on desegregation and prison reform has reserved this powerful remedy for extraordinary situations. In contrast, the Bush Court imposed the remedy in contravention of its prior case law to circumstances that did not warrant the broad remedy. Moreover, the Court misused its equity power to create a remedial façade that denied rather than provided relief. This unprecedented use of a prophylactic remedy thus creates important precedent for the future use of such powerful relief.

prophylactic remedy, remedies, constitutional law, Bush v. Gore

Abstract:
The book The Final Arbiter addresses the legal and political consequences of the Bush v. Gore decision. This article presented as Chapter 4 addresses the lasting impact of Bush v. Gore on the law of remedies. While others have focused on what the Court should or could have done in the case, this article focuses on what the Court actually did by analyzing the text of the decision and the remedial platform that formed the Court's consensus. The Court in Bush adopted a new model of prophylactic relief that provided too much, not too little relief. Yet this prophylactic remedy was disconnected from prior legal principles guiding the judicial use of this unique remedial power. The result of this novel use of a prophylactic remedy is the creation of a future model of expansive relief for constitutional violations. However the case also provides a model of federal court use of a remedy to nullify state rights.

prophylactic, remedy, Bush v. Gore, equal protection

Abstract:
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. The active scholars come from a variety of academic traditions including law, history, and women's studies. The Constitutional Law Center, established by Congress at the University of Akron School of Law, organized a conference entitled "The New Face of Women's Legal History" to bring together both the senior and emerging scholars in the field.

The articles included in this symposium edition of the Akron Law Review 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. Additional research from the symposium will also be published as part of an edited collection entitled Feminist Legal History: New Perspectives on the Law (T.J. Boisseau & Tracy Thomas, eds.). Contributing authors to the book employ the core theme of women's use of the law for feminist discourse in a variety of historical contexts to reframe and illuminate such topics as women's rights in the family, women's participation in the military, women's legal activism in social justice movements, women's roles in the judiciary, and women's status in constitutional law. The papers published here in this symposium edition provide a foray into this expanding field.

legal history, feminist legal theory

Abstract:
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.

This essay was written as part of the Akron Intellectual Property Scholars Roundtable and its conference exploring the legal implications of the eBay case.

injunctions, remedies, patents, equity

Abstract:
The identification of a separate classification of prophylactic injunctions and the continued judicial use of the remedy in institutional reform cases has developed a line between legitimate and illegitimate relief. The doctrine and theory of prophylaxis provides an alternative narrative by which to evaluate injunctive relief in order to retain valuable and effective judicial remedies. For the dominant discourse rejects prophylactic relief as illegitimate. Critics have disclaimed prophylactic and other public law relief as judicial policymaking through which judges impose obligations beyond the contours of the legal right. Despite this harsh criticism, prophylaxis has continued to thrive as an effective and necessary part of the practical remediation of complex cases. The continued use of prophylactic remedies demands an alternative theory of justification, for the image of an activist, judicial policymaker does not accurately explain the remedial practice. This essay argues against the rejection of all broad injunctive relief, and instead, suggests that the legal construct of the prophylactic injunction provides an alternative language through which jurists and lawyers can navigate the real issues of crafting appropriate relief.

injunctions, remedies, constitutional rights, judicial decisionmaking, institutional reform

Abstract:
The identification of a separate classification of prophylactic injunctions and the continued judicial use of the remedy in institutional reform cases has developed a line between legitimate and illegitimate relief. The doctrine and theory of prophylaxis provides an alternative narrative by which to evaluate injunctive relief in order to retain valuable and effective judicial remedies. For the dominant discourse rejects prophylactic relief as illegitimate. Critics have disclaimed prophylactic and other public law relief as judicial policymaking through which judges impose obligations beyond the contours of the legal right. Despite this harsh criticism, prophylaxis has continued to thrive as an effective and necessary part of the practical remediation of complex cases. The continued use of prophylactic remedies demands an alternative theory of justification, for the image of an activist, judicial policymaker does not adequately explain the actual remedial practice. This essay argues against rejecting all broad injunctive relief, and instead, suggests that the legal construct of the prophylactic injunction can be used to provide an alternative language through which jurists and lawyers can navigate the real issues of crafting appropriate injunctions.

This paper was presented at the 2007 AALS Meeting as part of the Remedies Workshop on injunctions.

injunctions, judicial decisionmaking, remedies, constitutional rights, institutional reform

Abstract:
Elizabeth Cady Stanton has been described as the most significant woman history has ever forgotten. Due to her radical feminism and the rise of conservative women leaders in the suffrage movement, much of her work and its significance have been lost to history. Scholars in women's studies and history beginning in the 1970s began to rediscover Stanton's important contributions to the feminist movement. Omitted from the scholarship, however, is an analysis of the importance of her contributions to the law, and in particular to the area of family law. Stanton was a holistic legal thinker, arguing that women's suffrage alone was insufficient for equality, and advocating universal reform of the laws of the family, employment, and community. This research intends to examine these legal writings of Stanton's on divorce, marriage, marital property, custody and domestic violence to identify her theories and proposals for equality within the family. By exploring the historical underpinnings of feminist legal theory as articulated by Stanton, this research hopes to inform the continuing debates over legal rights of women within the family.

The first objective of the research is to explore Elizabeth Cady Stanton's theories, writings, and advocacy of women's rights within the family. Stanton's comprehensive approach to equality for women under the law focused on marriage and mothering - what she believed to be the pivotal issues for women's ultimate social and legal equality. Stanton used her personal experience as a wife and mother of seven children as well as her de facto legal training to develop constructs reforming the legal and social confines of women in the family. The research explores each of the areas of family law that Stanton addressed, including the marital partnership, wives' marital names, marital property, divorce, domestic violence, and child custody. Stanton's work reveals an abundance of writings and advocacy on these feminist familial principles generally thought to be of late twentieth-century origin. Thus, a primary significance of the research is its identification of long-held, rather than newly-formed, notions of women's equality of legal rights within the family.

Secondly, the research focuses on Stanton's theories of legal feminism evidenced in her writings on domestic relations. Her work addressed three philosophical principles: spousal equality, mothering differences, and legal feminist theory. First, Stanton advocated women's equality in the marital partnership. Her specific proposals with respect to no fault divorce, marital governance, domestic violence, and joint marital property rights were designed to remove existing legal barriers to marital equality. Second, Stanton argued the law should be reformed to recognize the different, and in her view, superior, parenting of mothers. This theory supported her advocacy of legal reform now embodied in the modern concepts of maternal preferences or the "tender years presumption", which award custody of young children solely to mothers. Finally, the research explores the contrast of Stanton's equality views with those of her difference views, which foreshadows the twenty-first century feminist debates over the seemingly competing roles of feminism and motherhood. Stanton's insights as to how to reconcile these two views of women in the family thus potentially contribute to the ongoing debate in family law in the courts and in the American Law Institute over the rights of women in the family and society.

feminism, legal history, family law, women's rights, marriage, mother

Abstract:
This essay is part of the 2003 Remedies Forum 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 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 demonstrate 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.

due process, remedy, fundamental right, education, punitive damages

Abstract:
This Article criticizing the U.S. Supreme Court's most recent foray into equitable restitution appears as part of the 2002 Remedies Forum, a symposium and discussion group among international Remedies scholars on the topic of restitution. The Article asserts that the Court, led by Justice Scalia, has re-conceptualized equitable restitution with the effect of denying relief to claimants. It addresses the Court's most recent pronouncement on restitution in Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204 (2002), where 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. Using this definition, Justice Scalia narrowly classified as equitable restitution only those claims for an accounting for profits, equitable lien, or constructive trust that seek the return of specific funds held by the defendant.

This Article levels two criticisms at the Court's holding in Great-West Life. 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 Article 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.

equity, restitution, Supreme Court, remedies

Abstract:
The book The Final Arbiter addresses the legal and political consequences of the Bush v. Gore decision. This article presented as Chapter 4 addresses the lasting impact of Bush v. Gore on the law of remedies. While others have focused on what the Court should or could have done in the case, this article focuses on what the Court actually did by analyzing the text of the decision and the remedial platform that formed the Court's consensus. The Court in Bush adopted a new model of prophylactic relief that provided too much, not too little relief. Yet this prophylactic remedy was disconnected from prior legal principles guiding the judicial use of this unique remedial power. The result of this novel use of a prophylactic remedy is the creation of a future model of expansive relief for constitutional violations. However the case also provides a model of federal court use of a remedy to nullify state rights.

prophylactic, remedy, Bush v. Gore, equal protection

Abstract:
This article explores the legal question of reconciling remedies for constitutional rights when one remedy is crafted by the court and a substitute remedy is enacted by Congress pursuant to Section 5 of the Fourteenth Amendment. The question is particularly relevant at this time in light of recent trends in Congress to limit judicial remedies and the recent decisions by the Supreme Court that more narrowly define Congress's authority under Section 5. The article examines five Supreme Court cases from the 1999-2000 term (including the cases dealing with Miranda, the Prison Litigation Reform Act, and the Violence Against Women Act) under the lens of Remedies law to develop a more comprehensive framework of the Section 5 power that accurately defines the role of the legislature in enacting remedies for constitutional rights. The article expressly rejects the traditional characterization of remedies as "secondary" to the primary right that can be freely altered by Congress. Rather, the article advances a new "unified right theory" of remedies and integrates that theory into a workable framework for evaluating Section 5 legislation that reconciles both the Supreme Court's Section 5 jurisprudence and the true nature of remedies. The article ultimately 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. The article expands upon the Court's vague definitions of "prophylactic" and "proportional" by applying common interpretations of these terms from the law of Remedies.