Two events in the past twelve months have made me think about the law and society field and activism—two events and many years of telling myself that our field is about more than research.

In his presidential address, Frank Munger (2001) asks us to consider a reconciliation between inquiry and activism. Although Munger uses the broader and more inclusive term “social inquiry” as his counterpoint to activism, I would like to focus on a particular type of inquiry, one that has deep roots in the Law and Society Association (LSA) and one that is most opposed to activism: social science inquiry. In short, I would argue that tensions that historically have kept the projects of inquiry and activism separate emerge out of a particular brand of inquiry known as empiricism and, among other things, its commitment to value freedom.

This comment responds to Frank Munger's Law and Society Association Presidential Address on scholars as activists. It argues that scholarly research can both constitute and fuel activism. Activist scholarship is, however, not confined to scholars in any one part of the political spectrum. Deeply held values can motivate exceptional work but also raise the danger that political commitments will unduly influence purportedly “objective” findings. Value-infused research should be true to research values even if inspired by political ones.

It is an instructive irony that Frank Munger delivered his Presidential Address in Miami Beach. As someone who was there on Memorial Day weekend of 2000, I can report that at the time of the address there was more than the usual contrast between setting and substance. Munger issued his call for connecting law and society research to the real world of struggle and politics in the cool, windowless expanse of a plush convention-hotel ballroom. The response of the audience was polite, if not inspired. In sharp contrast, immediately outside the hotel, the hot and humid streets of South Beach buzzed and blared with a Hip Hop convention that had drawn masses of young people from around the country. This was an audience that really was turned on to the message of its leaders.

Within the burgeoning global discourse on human rights, gender violence provides one of the most important examples of the use of rights to tackle a newly defined social problem. A comparison of three quite different approaches to violence against women in a single town, each of which is rooted in a global movement, reveals sharp differences in the way the problem is defined and the solutions are imagined. One approach focuses on the assertion of rights and relies on a feminist analysis of patriarchy, another on prayer and the elimination of enemy forces within a framework of Pentecostal Christianity, and one on repentance and reconciliation within the framework of the family and the community. Despite these differences, however, all three employ similar technologies of the self, focusing on knowing feelings, making choices, and building self-esteem. This article demonstrates how globalization allows differences on the basis of religion and culture while promoting similarities in techniques of fashioning the self, thus promoting modern subjectivity in the midst of difference.

Italy's Supreme Court recently overturned a rape conviction on the grounds that the woman was wearing blue jeans at the time. The Court reasoned that blue jeans cannot be removed “without the active cooperation of the person who is wearing them,” and therefore sexual intercourse must have been consensual. The decision was met with outrage by media commentators, political leaders, and ordinary Italians in a range of civic organizations. I argue here that this case and others like it are conspicuously inconsistent with a constitutive perspective that sees law and everyday normative orders as mutually embedded, or at least reciprocally reinforcing, and that focuses on law's hegemonic potential. In this revisiting of the constitutive approach, I propose that the concept of legal hegemony be elaborated to include the counterintuitive possibility that law can sabotage the very ideologies it invokes. For when an authoritative source such as law is so out of step with the evolving normative order, the shocking discrepancy exposes not only the fallibility of law but also the foolishness of the outdated moral vision it is caught endorsing. Finally, I suggest that it may be during “unsettled cultural periods” (Swidler 1986) that such “de-constitutive” moments are most likely.

What role do courts play in the establishment and maintenance of constitutional democracies? To address this question, we elaborate a model that draws on existing substantive literature and on theories that assume strategic behavior on the part of judges, executives, and legislatures. This model, in turn, leads to several behavioral predictions about the interactions among the relevant political actors. Although those predictions could be assessed in many distinct contexts, we focus on Russia. In particular, we provide a demonstration of how the model helps make sense of the behavior of the Constitutional Court (Konstitucjonnyj sud) in light of the difficult political situation it confronted. We conclude with some thoughts on the broader implications of our theory for the study of courts throughout Eastern Europe and how it may well illuminate constitutional politics in other parts of the world.

Criminal legal codes draw clear lines between permissible and illegal conduct, and the criminal justice system counts on people knowing these lines and governing their conduct accordingly. This is the “ex ante” function of the law; lines are drawn, and because citizens fear punishments or believe in the moral validity of the legal codes they do not cross these lines. But do people in fact know the lines that legal codes draw? The fact that several states have adopted laws that deviate from other state laws enables a field experiment to address this question. Residents (N = 203) of states (Wisconsin, Texas, North Dakota, and South Dakota) that had adopted a minority position on some aspect of criminal law reported the relevant law of their state to be no different than did citizens of “majoritarian” states. Path analyses using structural equation modeling suggest that people make guesses about what their state law holds by extrapolating from their personal view of whether or not the act in question ought to be criminalized.

In this article, I examine whether divided government has any meaningful impact on the type of judges appointed to the lower federal courts. Specifically, I compare the voting behavior of Clinton judges confirmed before and after the Republicans took majority control of the Senate as well as the voting behavior of judges appointed by President Reagan before and after the Democrats took control of the Senate in the 1980s in order to detect whether judges appointed under divided government are more moderate than those under unified government. Believing that the Senate lacks the resources to have a meaningful impact in shaping judicial ideology on the lower federal courts—as hundreds of judges must be confirmed during the course of a presidential administration—I hypothesize that there is no difference in voting behavior between judges appointed under united and divided government. Consistent with my hypothesis, I find that there is no difference in voting behavior between judges appointed during united and divided government in three critical issue areas: search and seizure cases, race discrimination cases, and federalism cases. This was true of judges appointed during the Clinton and Reagan presidencies, and was true in all three issue areas tested.