Indiana Law Review Indiana Law Review vJ"^- ii '-J^^^ii C.2, Volume 32 No. 4 1999 m\ UNIVERSITY ,U(i Lb Women and the Law: Facing the Millennium introduction Introduction to Women and the Law: Facing the Millennium Indiana Law Review The Honorable Ruth Bader Ginsburg ARTICLES Examining Race and Gender Bias in the Courts: A Legacy of Indifference or Opportunity? Justice Myra C. Selby Protecting the Hand that Rocks the Cradle: Ensuring the Delivery of Work Related Benefits to Child Care Workers Debra Cohen-Whelan Feminists & Contract Doctrine Debora L. Threedy .IBRARY The Rugged Feminism of Sandra Day O'Connor Judith Olans Brown Wendy E. Parmet Mary E. O'Connell 1 6 1999 On Mirror and Gavels: A Chronicle of How Menopause Was Used as a Legal Defense Against Women Phyllis T. Bookspan Maxine Kline REVIEW ESSAY Orthodoxy and Heresy: The Nineteenth Century History of the Rule of Law Reconsidered Richard P. Cole NOTES The Managed Care Plan Accountability Act Heather Hutchinson Private Police: Defending the Power of Professional Bail Bondsmen Holly J. Joiner A New Understanding of Specific Act Evidence in Homicide Cases Where the Accused Claims Self-Defense: Striking the Proper Balance Between Competing Policy Goals Mary Kay Kleiss Compliance Under ERISA Section 404(c) with Increasing Investment Alternatives and Account Accessibility Keith R. Pyle Family In Law. In 1933, BNA first published The United States Law Week. With that first issue, BNA set a new standard for high-quality legal reporting and research. Following Law Week's precedent, BNA has since launched a family of information services for legal professionals. BNA's notification services cover key areas of the legal field. They include: Family Law Reporter; BNA's Bankruptcy Law Reporter; Business Law Adviser; Corporate Governance Report; Mergers & Acquisitions Law Report; BNA's Patent, Trademark & Copyright Journal; and Criminal Law Reporter. Whichever publication you choose, you'll notice the family resemblance — comprehensive, accurate, in-depth coverage. Ask your professor for details on low student rates for BNA information services. The Bureau of National Affairs, Inc. 1231 25th Street, NW Washington, DC 20037 Customer Relations: 1-800-372-1033 email: riskfree@bna.coin http://www.bna.com MiNDE C. Browning 1958-1999 The Indiana Law Review dedicates this issue to Minde C. Browning for her friendship and commitment to the Law Review. Minde, herself a graduate of the Indiana University School of Law—Indianapolis, was a member ofthe law library faculty for ten years. She served as Assistant Director for Reader Services and Assistant Director of the Program for Management of Legal Information Systems. Minde provided constant guidance fovLaw Review editors and helped new Law Review members to better understand reference services and database searches. She also helped maintain the Law Review's website, including the placement of back issues at the site. The Indiana Law Review deeply feels the loss of Minde's support, patience, talent, and energy. Indiana Law Review Volume 32 1998-99 Editor-in-Chief Kelly S. Thompson Executive Managing Editor Karen Butler Reisinger Executive Articles Editor Angela R. Martin Executive Notes and Topics Editor Heather S. Hutchinson Symposium Editor Kristyn E. Kimery Articles Editors Marjorie M. Campbell Angela L. Hamm Mary Kay Kleiss Erica S. Miller Melanie D. Pennycuff Coleen R. Williams Note Development Editors Katrina M. Clingerman Kim L. Johnson-Spratt Holly J. Joiner Christa L. Klopfenstein Keith R. Pyle Nissa M. Ricafort Mark J. Stewart Christopher M. York John M. Bradshaw Adam F. Cox Greg J. Duncan John A. Girod Suzanne J. Murphy Associate Editors Cathy A. Niemeyer Kim R. Sorg-Graves Amy L. Stewart Gene A. Wheeler Members Brittany R. Abemathy Jennifer K. Bagby Grace M. Baumgartner Jamie R. Brashear Lorena Bray Amanda Dickmann Elijah D. Farrell A. Jack Finklea Mary Jane Frisby Terry E. Hall Pamela J. Hensler Erin E. Heuer Joshua P. HoUingsworth Kelley A. Kam Susan W. Kline Chad J. Melchi Dee Ann Miller Theresa M. Moore Cynthia A. Muse Shawn A. Neal Michelle L. Neff Gregory A. Neibarger Jill M. Ceding Patrick James Olmstead James C. Owen Patrick A. Scheiderer Tiffany A. Sharpley Tara J. Stapleton Chris A. Wrede Editorial Specialist Chris Paynter Faculty Advisor David R. Papke Indiana International & Comparative Law Review The Indiana International & Comparative Law Review, published by the Indiana University School of Law—^Indianapolis since 1991, is a student-edited law journal which provides a forum for the discussion and analysis of contemporary issues in public and private international law. The Review publishes articles by prominent legal scholars, practitioners, and policy makers from around the world, as well as student-written notes and comments. The Review is published twice annually, with a periodic third issue devoted to a specific topic in international or comparative law. In 1994, in conjunction with the Italian Academy for Advanced Studies in America at Columbia University, the Review published a special issue on the political and social aspects of Italian law. In 1996, the Review published an issue addressing various aspects of Chinese law. Visa Mastercard Name School/Firm/Business Credit Card Number Address Expiration Date City, State, Zip Code Signature (Required) I enclose $ for subscriptions to the Indiana International and Comparative Law Review (Subscriptions $18.00 per year within the U.S./$21.00 per year outside the U.S.). Please make your check payable to Indiana International & Comparative Law Review. 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Martin (Executive Articles Editor). Women and the Law: Facing the Millennium In celebration of the Indiana Law Review's first all-female Executive Board, this issue explores the relationship between w^omen and the law. We extend our thanks to Professor Florence Roisman for planting the seed that germinated into this issue; and Professor David Papke for encouraging us to implement our ideas for progressing the Law Review, Indiana Law Review (ISSN 0090-4198) Published four times a year by Indiana University. Editorial and Business Offices are located at: Indiana Law Review 735 W. New York Street Indianapolis, IN 46202-5194 (317)274-4440 Subscriptions. For the following academic year, subscription rates will be $30.00 per four-issue (domestic mailing) and $35.00 (foreign mailing). Unless the Business Office receives notice to the contrary, all subscriptions will be renewed automatically. 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Indiana University Scliool of Law—Indianapolis 1998-99 ADMINISTRATIVE OFFICERS AND FACULTY Administrative Officers Myles Brand, President of the University. Ph.D. in Philosophy, University of Rochester (New Yorlc). Gerald L. Bepko, Vice-President for Long-Range Planning, Indiana University; Chancellor, Indiana University-Purdue University at Indianapolis and Professor of Law. J.D., ITT/Chicago-Kent College of Law; LL.M.. Yale University. Norman Lefstein, Dean and Professor of Law. LL.B., University of Illinois; LL.M., Georgetown University. SuSANAH M. Mead, Associate Dean for Academic Affairs and Professor of Law. B.A., Smith College; J.D., Indiana University—Indianapolis. Elizabeth L. DeCoux, Assistant Dean for Student Affairs. J.D., Mississippi College School of Law Angela M. Espada, Assistant Dean for Admissions. J.D., Indiana University—Bloomington. JoNNA M. Kane, Assistant Dean for External Affairs. J.D., Indiana University—Indianapolis. Karen Marks, Director of Career Services. B.S., St. Joseph's College; M.S., Illinois State University. JONI D. Thompson, Assistant Dean for Development. M.A., Ball State University. Faculty Cynthia M. Adams, Lecturer in Law. B.A., Kentucky Wesleyan College; J.D., Indiana University — Indianapolis. Thomas B. Allington, Professor ofLaw. B.S., J.D., University of Nebraska; LL.M., New York University Edward P. Archer, Professor of Law. B.M.E., Renesselaer Polytechnic Institute; J.D., LL.M., Georgetown University. James F. Bailey, III, Professor of Law and Director of Law Library. A.B., J.D., M.A.L.S., University of Michigan. Gerald L. Bepko, Vice Presidentfor Long-Range Planning, Chancellor, and Professor ofLaw. B.S., Northern Illinois University; J.D., IIT/Chicago-Kent College of Law; LL.M., Yale University. Robert Brookins, Professor of Law. B.S., University of South Florida; J.D., Ph.D., Cornell University. Daniel H. Cole, Professor ofLaw. A.B., Occidental College; A.M., University of Chicago; J.D., Lewis and Clark College; J.S.M., Stanford Law School. Jeffrey O. Cooper, Assistant Professor of Law. A.B., Harvard University; J.D., University of Pennsylvania. Paul N. Cox, Professor of Law. B.S., Utah State University; J.D., University of Utah; LL.M., University of Virginia. Kenneth D. Crews, Associate Professor of Law and Library and Information Science. B.A., Northwestern University; J.D., Washington University; M.L.S., University of California, Los Angeles; Ph.D., University of California, Los Angeles. Clyde Harrison Crockett, Professor ofLaw. A.B., J.D., University ofTexas; LL.M., University of London (The London School of Economics and Political Science). James D. Dimitri, Lecturer in Law. B.S., Indiana University; J.D., Valparaiso University School of Law. George E. Edwards, Associate Professor of Law and Director, Program in International Human Rights Law. B.A., North Carolina State University; J.D., Harvard Law School. Paul J. Galanti, Professor of Law. A.B., Bowdoin College; J.D., University of Chicago. Harold Greenberg, Professor ofLaw. A.B., Temple University; J.D., University of Pennsylvania. Jeffrey W. Grove, Professor of Law. A.B., Juniata College; J D., George Washington University. Frances Watson Hardy, Clinical Associate Professor ofLaw. B.S., Ball State University; J.D., Indiana University—Indianapolis. Michael R. Heise, Assistant Professor of Law and Director, Program in Law and Education. A.B., Stanford University; J.D., University of Chicago; Ph.D., Northwestern University. W. William Hodes, Professor of Law. A.B., Harvard College; J.D., Rutgers, Newark. Lawrence A. Jegen, III, Thomas E Sheehan Professor of Tax Law and Policy. A.B., Beloit College; J.D., M.B.A., The University of Michigan; LL.M., New York University. Henry C. Karlson, Professor of Law. A.B., J.D., LL.M., University of Illinois. Eleanor D. Kinney, Professor ofLaw and Co-Director of the Centerfor Law and Health. B.A., Duke University; M.A., University of Chicago; J.D,, Duke University; M.P.H., University of North Carolina. Ronald J. Krotoszynski, Jr., Assistant Professor ofLaw. B.A., M.A., Emory University; J.D., LL.M., Duke University. Norman Lepstein, Dean and Professor of Law. LL.B., University of Illinois; LL.M., Georgetown University. Lynn A. McDowell, Clinical Associate Professor ofLaw. B.S. Indiana University; J.D., Indiana University—Indianapolis. Deborah McGregor, Lecturer in Law and Assistant Director ofLegal Writing. B.A., University of Evansville; J.D., Georgetown University. SuSANAH M. Mead, Associate Dean and Professor of Law. B.A., Smith College; J.D., Indiana University—Indianapolis. Mary H. Mitchell Professor ofLaw. A.B., Butler University; J.D., Cornell Law School. James P. Nehf, Professor ofLaw. B.A., Knox College; J.D., University of North Carolina. David Orentlicher, Professor ofLaw and Co-Director ofthe Centerfor Law and Health. A.B., Brandeis University; J.D., M.D., Harvard College. Joanne Orr, Clinical Associate Professor of Law. B.S., Indiana State University; J.D., California Western. David R. Papke, R. Bruce Townsend Professor ofLaw and Professor ofAmerican Studies. A.B., Harvard College; J.D., Yale University; M.A. in American Studies, Yale University; Ph.D. in American Studies, The University of Michigan. H. Kathleen Patchel, Associate Professor of Law. A.B., Huntington College; J.D., University of North Carolina; LL.M., Yale University. Fran Quigley, Clinical Associate Professor of Law. B.A., Hanover College; M.A., Indiana University—Bloomington; J.D., Indiana University—Indianapolis. Florence Wagman Roismah, Associate Professor ofLaw. B.A., University of Connecticut; LL.B., Harvard Law School. JoanM. Ruhtenberg, Clinical Professor ofLaw and Director ofLegal Writing. B.A., Mississippi University for Women; J.D., Indiana University—Indianapolis. E. Gary Spitko, Assistant Professor of Law. A.B., Cornell University; J.D., Duke University Law School. June O. Starr, Associate Professor of Law. B.A., Smith College; M.A., Columbia University; Ph.D., University of California, Berkeley; M.S.L., Yale University; J.D., Stanford Law School. Kenneth M. Stroud, Professor of Law. A.B., J.D., Indiana University—Bloomington. James W. Torke, Professor of Law. B.S., J.D., University of Wisconsin. James Patrick White, Professor of Law and Consultant on Legal Education to the American BarAssociation. A.B., University of Iowa; J.D., LL.M., George Washington University. Lawrence P. Wilkins. Professor ofLaw. B.A., The Ohio State University; J.D., Capital University Law School; LL.M., University of Texas. Mary T. Wolf, Clinical Professor ofLaw and Director ofClinical Programs. B.A., Saint Xavier College; J.D., University of Iowa. Emeriti Agnes P. Barrett, Associate Professor Emerita. B.S., J.D., Indiana University. Cleon H. Foust, Professor Emeritus. A.B., Wabash College; J.D., University of Arizona. David A. Funk, Professor ofLaw Emeritus. A.B., College of Wooster; J.D., Case Western Reserve University; M.A. , The Ohio State University; LL.M., Case Western Reserve University; LL.M., Columbia University. Helen P. Garfield, Professor Emerita. B.S.J., Northwestern University; J.D., University of Colorado. William F. Harvey, Carl M. Gray Professor ofLaw & Advocacy Emeritus. A.B., University of Missouri; J.D., LL.M., Georgetown University. William Andrew Kerr, Professor of Law Emeritus. A.B., West University University.; J.D., LL.M., Harvard University; B.S., Duke University. Melvin C. Poland, Cleon H. Foust Professor of Law Emeritus. B.S., Kansas Slate University; LL.B., Washburn University; LL.M., University of Michigan. Ronald W. Polston, Professor Emeritus. B.S., Eastern Illinois University; LL.B., University of Illinois. Law Library Faculty James F. Bailey, III, Professor and Director of Law Library. A.B., J.D., M.A.L.S., University of Michigan. MiNDE C. Browning, Assistant Director for Readers' Services. B.A., Western University; M.L.S., Indiana University; J.D., Indiana University School of Law—Indianapolis. Richard Humphrey, Reference Librarian. A.A., Brewton-Parker Junior College; B.A., Georgia Southwestern College; M.L.S., University of Kentucky. Wendell E. Johnting, Assistant Directorfor Technical Services. A.B ., Taylor University; M.L.S., Indiana University. Bruce Kleinschmidt, Reference Librarian. B.A., Furman University; J.D., University of Louisville; M.L.S., University of North Texas. Chris E. Long, Catalog Librarian. B.A., Indiana University; M.A., Indiana University; M.L.S., Indiana University. Mahnaz K. Moshfegh, Acquisition/Serials Librarian. B.A., National University of Iran; M.S., Tehran University; M.A., Ball State University; M.L.S., Ph.D., Indiana University. Kiyoshi Otsu, Computer System Specialist. A.A., Parkland College; A.B., M.S., C.A.S., University of Illinois. Indiana Law Review Volume 32 1999 Number 4 Copyright © 1999 by the Trustees of Indiana University TABLE OF CONTENTS Women and the Law: Facing the Millennrjm introduction Introduction to Women and the Law: Facing the Millennium Indiana Law Review The Honorable Ruth Bader Ginsburg 1 161 ARTICLES Examining Race and Gender Bias in the Courts: A Legacy of Indifference or Opportunity? Justice Myra C. Selby 1 167 Protecting the Hand that Rocks the Cradle: Ensuring the Delivery of Work Related Benefits to Child Care Workers Debra Cohen-Whelan 1 187 The Rugged Feminism of Sandra Day O'Connor Judith Olans Brown 1219 Wendy E. Parmet Mary E. O'Connell Feminists & Contract Doctrine Dehora L Threedy 1247 On Mirrors and Gavels: A Chronicle ofHow Menopause Was Used as a Legal Defense Against Women Phyllis T. Bookspan 1267 Maxine Kline REVIEW ESSAY Orthodoxy and Heresy: The Nineteenth Century History of the Rule ofLaw Reconsidered Richard P. Cole 1335 NOTES The Managed Care Plan Accountability Act Heather Hutchinson 1383 Private Police: Defending the Power of Professional Bail Bondsmen Holly J. Joiner 1413 Volume 32 Number 4 A New Understanding of Specific Act Evidence in Homicide Cases Where the Accused Claims Seif-Defense: Striking the Proper Balance Between Competing Policy Goals .... Mary Kay Kleiss 1437 Compliance Under ERISA Section 404(c) with Increasing Investment Alternatives and Account Accessibility Keith R. Pyle 1467 Volume 32 Number 4