Liberty of Contract and Gender Studies

Michael Schearer, University of Maryland School of Law, has published No Ma’am: Progressive Reform as an Obstacle to Gender Equality. Here is the abstract.

In the four decades between 1897 and 1937, conservatives repeatedly skirmished with progressives, especially in the labor arena. The chief weapons were liberty of contract on the conservative side and the state’s police power on the progressive side. Since the 1970s, a growing body of scholarship has taken a critical look at Progressive Era Supreme Court cases with an eye toward evaluating the long-term legacy of women’s protective labor legislation. This paper seeks to add a critical piece to the conversation by looking at efforts by the Court to acquiesce to the progressive political agenda by perpetuating gender stereotypes and prolonging a period of indifference toward the rights of women. The courts’ already-deferential attitude toward women’s protective labor legislation was reinforced and enhanced by abandonment of meaningful rational basis review. Given a fair chance, the natural evolution of the liberty of contract doctrine might well have led to some fuller measure of gender equality, especially in the labor arena, considerably sooner than actually occurred. Ultimately, though, the structural subordination of women doomed their chances.

Download the paper from SSRN at the link.