Book Review: Origins of Protective Labor Legislation for Women

Abstract

The Supreme Court's decision in Muller v. Oregon ratifying protective legislation for women has led a varied life. Initially viewed as a victory for labor, reflecting the emergence of social realism in constitutional jurisprudence, by the 1970s Muller was attacked as an exemplar of sexist and paternalistic reasoning, the regime of sex-based distinctions it sanctioned challenged by women demanding formal equality at law. In the 1980s, as women have increasingly come to question the sufficiency of a formal conception of equality, it is not surprising that Muller should receive renewed attention. The case figured prominently in debates over the equities of a sex-specific claim to employment leave for childbearing purposes prompted by California Federal Savings & Loan Association v. Guerra. No longer a rallying point of women's advocacy, Muller now stands at the heart of feminist controversy, invoked by feminists defending formalist principles of equality against feminist challenge, to dramatize the danger their breach entails. Most recently commentary has begun to focus on women's role in securing and defending the sex-based legislation Muller sanctioned-the case now posing questions about the politics of feminist advocacy itself.