During the past 20 years, the American politics of race has been characterized by fundamental disagreements over the legitimacy of racial preferences. I trace the development of these disagreements within the Supreme Court's jurisprudence of affirmative action. I argue that the content and endurance of the Court's ambiguous jurisprudence stems from the particular politics of constitutional adjudication. More specifically, I argue that the overarching task of the modern Court is to justify its actions against a baseline of interest-group politics. The uncertain logic of affirmative action creates a position for the Court within the group process, meeting the judicial challenge of self-justification even as it leaves the ultimate validity of racial preferences open to question.

This inquiry provides a basic assessment of the impact of three potential determinants of racial discrimination cases in the U.S. Supreme Court since 1954. The research design provides two improved methods of explicating this issue. First, the model allows for a comparison of basic Hamiltonian institutionalism (i.e., the bulwark thesis), majoritarianism, and attitudinalism in a single test, as opposed to previous studies that tended to examine only two theoretical approaches at a time. Second, the majoritarian approach is given more careful consideration through the use of theoretical and empirical evidence, which allows the subtleties of public opinion in this area to be assessed. The findings show some support for the basic bulwark prediction over majoritarianism—decisions fail to reflect majority opinion trends. The bulwark thesis fails to receive full support, however, since the ideologies of the Justices also display a significant influence on outcomes.

Constitutional scholars have conceptualized Reconstruction debate mainly as a debate over the meaning of the original Constitution. However, Civil War narratives that identified “the problems” with slavery and emplotted the events of slavery politics were a major vehicle by which the Fourteenth Amendment was debated. Dispute over a text (the original Constitution) and dispute over the description of events intertwined. This article elucidates the content of slavery/war narratives and applies them to the domain of constitutional law. Crucial elements of the Northern Democratic war narrative were endorsed by the Supreme Court in the Slaughter-House Cases (1873), even though the Democrats were the legislative losers. Democratic history, grounded on a strong strain of white supremacy extending back to Stephen Douglas, played a crucial role in legitimating the Court's narrow doctrinal interpretations of the Fourteenth Amendment.

Theorists of Critical Legal Studies (CLS) have argued that the abstract, individualistic, and state-dependent character of rights makes them of dubious value for groups fighting for social change. Southern civil rights organizers in the early 1960s engaged in the kind of power-oriented strategy that CLS writers advocate in lieu of a rights-oriented one. However, the rights claims they made inside and outside courtrooms were essential to their political organizing efforts. Far from narrowing collective aspirations to the limits of the law, activists' extension of rights claims to the “unqualified” legitimated assaults on economic inequality, governmental decisionmaking in poverty programs, and the Vietnam War. What made possible this novel formulation was not only the multivalent character of rights but also key features of the social, political, and organizational contexts within which rights were advanced.

The institutional environment in both the private and public sector, according to a wide range of observers, is increasingly “legalized”: decisionmaking processes and substantive policies are increasingly subject to legal rules and procedural requirements that are enforceable in court. Although there is little dispute that legal liability has expanded in this way, there is great dispute about the effect of these changes, particularly their costs, on public organizations in practice. Some observers argue that legalization has imposed heavy costs, especially financial costs, on organizations; others, for a variety of reasons, argue that these costs are likely to be exaggerated. In this article I suggest that organizational expenditures on legal services are likely to be a valid indicator of certain important elements of the costs of administrative legalization. I present the results of a study of the legal services expenditures of 13 major U.S. cities over a 35-year period. The results indicate that legal services expenditures indeed have increased in many cities, although not as much as some commentators have speculated. Furthermore, there are significant variations in expenditure patterns among the cities, and a number experienced no long-term growth trend in legal services expenditures.

The formal literature on pre-trial bargaining offers considerable insight on how different bargaining procedures asymmetric information affect efficiency. Less attention has been paid to fairness, despite the fact that fairness is an essential component of any system of justice. We address this state of affairs by analyzing the equilibria of a pre-trial bargaining model for both fairness and efficiency. This analysis involves ascertaining whether fair and efficient equilibria are possible and whether they occur for common parameter values, and characterizing their behavioral and distributional properties. We conclude that fairness is a paramount concern to litigants and society and that fair and efficient equilibria are possible.

Inside counsel to major corporations have accrued more power and status within the legal profession, but continue to struggle for influence and legitimacy within the corporation. In-depth interviews with lawyers and managers in large businesses reveal that inside counsel construct different professional roles for themselves depending on circumstances. We identify three ideal types of such roles: they act as cops (limiting their advice to legal mandates), counsel (combining legal and business advice), or entrepreneurs (giving priority to business objectives rather than legal analysis). The entrepreneurial role and its associated discourse seem to mark a departure from earlier studies of inside counsel. We argue that entrepreneurial tendencies reflect the efforts of corporate counsel to adapt their images and lawyering styles to the prerogatives of contemporary management. Accordingly, inside lawyers limit their gatekeeping functions, emphasize their dedication to managerial objectives, and defer to management's judgments about legal risk. Nonetheless, inside counsel retain their professional identities as lawyers and rarely express an interest in moving into corporate management. Inside counsel are “professionals” who present themselves as enthusiastically committed to corporate objectives.