Why, in comparison with other liberal capitalist democracies, is the social welfare state so poorly anchored in American law and public discourse? Surely American political and social history have contributed much to the weakness of our “social state.” But law, too, has played a significant material, as well as ideological, role and has provided the terrain for much of our social development. This essay explores the particular contribution of the property-liberty nexus to the stunted development of positive liberty and social citizenship in the United States. It traces this connection from the natural rights and bourgeois Founders through several key conjunctures in American history, including Reconstruction, the New Deal, and the civil rights periods and compares some of the results with developments in Germany and the aspirations of American progressives.

The essay contends that left and right alike have operated within a highly resilient and constricting framework that has made progress in the area of social citizenship both awkward and fragile. Although some possibilities for forward movement have always existed and still remain, the prospects for positive-liberty social-state law are not abundant: The master's house is not about to be taken down with his own tools.

Drawing on prior theoretical and empirical work that has begun to constitute the insurance field as a distinct sociolegal research project, this study uses quantitative and qualitative data collected following Hurricane Andrew in 1992 to explore distributional questions within that field. Survey results show that higher income, age, and education were associated with having home insurance and that Hispanics and blacks were less likely than non-Hispanic whites to have insurance. The study provides the first quantitative evidence of bias in the insurance claims process by documenting a statistically significant and substantial ethnic difference in the timing of insurance payments. The qualitative research helps to explain the difference in the timing of insurance payments as the product of unconscious bias by insurance adjusters. The study concludes by proposing market-structuring regulation to reduce the inequality encountered.

The decision rules individuals use to judge wrongdoing committed inside corporations and other hierarchical organizations are not well understood. We explore this issue by asking random samples of individuals in Moscow, Tokyo, and Washington, D. C., to respond to four short vignettes describing acts of wrongdoing by people in corporations. The vignettes are experiments that manipulate the actor's mental state, the actor's position in the organization, and whether the actor's decision was influenced by others in the organization. We examine (1) the distribution of responsibility among people in the organization, (2) how individual responsibility affects the attribution of responsibility to the organization itself, and (3) cross-national differences in attributions. We find that both what the actors did (their deeds) and the position they occupied (their roles) significantly influence the responsibility attributed to them. The responsibility attributed to the organizations themselves is a function of the responsibility attributed to the actors inside the organization, but not a function of the independent variables in the experiments. Cross-national differences emerge with respect to the responsibility assigned both to individuals and to the organizations themselves. We discuss implications of these results for past and future work.

This article provides an overview of federal litigation involving the largest 2,000 U. S. corporations over the period 1971–91. Reporting from a unique data set of the authors' construction, it finds that althugh the aggregate volume of business litigation grew during the 1970s and early 1980s, it has actually been declining in recent years in all major categories of cases; business-related litigation is heavily concentrated, with an extremely limited number of business “mega-litigants” accounting for most of the activity; this concentration is particularly evident in tort, with the result that the tort trend line outside the concentration is actually flat or declining; a good deal of the growth in litigation outside the tort area can be attributed to business itself; and big business wins overwhelmingly, as plaintiff and defendant, in cases that involve it. The general applicability of these findings is limited by the data's restriction to federal court litigation and the structure of the Integrated Federal Court Data Base from which the authors' data set was constructed. This granted, the report is by far the most comprehensive treatment of U. S. big business litigation to date, and its findings are strikingly at odds with the premises of much current policy discussion.

This article examines politics on the Lower East Side of Manhattan, New York City, for evidence of law at the constitutive level. We see legal relations shaping grassroots struggles over public space and housing as forums, claims, and political positions. This view challenges instrumental conceptions of law still prominent in some social-scientific approaches.

Not long ago it was a central feature of critical scholarship that “liberal legalism” was beset by a set of antinomies that, when exposed, never failed to undermine overblown claims of law's majestic neutrality. In project after project, scholars demonstrated that beneath the smooth veneer of interlocking principles were conflicting doctrines that could be drawn upon creatively as judges saw fit. At the same time that contract law insists that the will of parties shall not be second-guessed, it accommodates the possibility that the parties made some mistakes or that agreed-upon terms might be commercially impracticable or even unconscionable. While the criminal law generally assumes that human behavior is intentional, it also relies extensively on deterministic discourses in doctrines such as duress, necessity, and provocation. Cutting across particular lines of doctrine were arguments about how the form of law under liberalism vacillated between a reliance on fixed rules and a reliance on flexible standards and how it also embraced simultaneously a formalist logic and a consequentialist one.

During the Progressive Era, the U. S. state and federal courts considered constitutional challenges to protective labor legislation. While courts often struck down generalized protective legislation, they frequently upheld such legislation for women. I explore the reasoning in the cases decided between 1897 and 1923, showing that the courts developed understandings of liberty for women that differed from those for men. In opposition to traditional separate spheres reasoning, I show that the courts viewed men's exercise of liberty as depending on their private capacities to be free, while women's labor was subject to public control due to state interest in their reproductive capacities. I suggest that constitutional theorists who are studying substantive due process should place more emphasis on courts'conceptions of the subjects of due process guarantees rather than considering solely the challenged statutes' restriction of liberty. I develop a dynamic and complex understanding of liberty to capture this aspect of the relationship between constitutional theory and gender.

A replication of Macaulay's 1963 study of Wisconsin manufacturers shows that manufacturers are using a new type of contract to govern changed transactions and to establish new form of industrial organization. This article seeks to specify these changes and to demonstrate their theoretical significance by constructing an empirically and theoretically informed analytical framework. This framework establishes relations of meaning between discrete contracts, job shop production, and classical contract law; between openterm contracts, mass production, and neoclassical contract law; and between long-term agreements, flexible production, and a “shadow” relational contract law. It demonstrates that long-term agreements constitute a new device for governing exchange, that they are part of a broader change from mass production to flexible production, and that their distinctive features are not recognized by neoclassical contract law.

This article seeks to show the way that professional competition, including academic competition, about the definitions and categories of dispute resolution transforms the field of business disputing. It draws on extensive interviews and focuses on two case studies. The first is “international commercial arbitration,” and the second is the ADR movement, especially “mediation,” in the United States. In each case, the article shows that there is competition about what can legitimately be termed arbitration or mediation; that there is competition more generally for the business of business disputing; that the competition is not played on a level playing field; that competitors compete in terms of the symbolic capital that they have to offer, which is changing over time and in relation to what others possess; and that the (always provisional) results are important for transforming the “rules of the game” for governing business transactions. The internal transformations in the field of business disputing also take place in close conjunction with transformations that can be seen as outside, above all, the international restructuring of business relations in the 1970s and 1980s.

On 5 January 1879, the Chicago Tribune published an interview with Karl Marx that had been conducted in London a few weeks earlier. In the course of the interview Marx clarified the platform of the International Society as it had been established at Gotha in 1875. The platform was a litany of liberal reforms: universal male suffrage in all elections, popular referenda on issues of war and peace, the abolition of a standing army matched by universal military duty, the abolition of all laws regulating the press and public assemblies, free legal counsel and jury trials, universal public education, freedom of science and religion, a progressive income tax, legal restrictions on the length of the working day, the abolition of child labor, sanitary laws guaranteeing the safety of the living and working conditions of labor, and restrictions on prison labor.

Agreeing and sympathizing as I do with what I take to be the core of Professor Abraham's argument—that prevailingly American constitutional thought and public reason model their conceptions of liberty and basic rights too much on proprietorship and too little on citizenship—I confine myself here to a suggestion about the framing of the argument.

Business litigation is a relatively neglected area of corporate governance, particularly given its enormous rise in the United States over the past generation. As a preliminary effort to engage this issue, we examine dispute avoidance and resolution in the automotive sector since the early 1970s-focusing on relationships between auto manufacturers and their suppliers and dealers. We generally presume intercorporate litigation to be a “last resort” in business practice, chosen only on the breakdown of less costly means of dispute avoidance or resolution; we take such breakdown typically to be caused by shifts in the terms of competition among firms (e. g., increased competition, instability, uncertainty); and we expect that, over time, the costs of litigation will motivate efforts to construct new structures of nonlitigious dispute resolution. In the case of the U. S. auto industry, we find disruptive shifts in the terms of competition and increased recourse to litigation. Throughout, however, this litigation effect is mitigated by the dominance of major manufacturers over their suppliers and dealers. Over time, it is further dampened by industry development of mechanisms for arbitration or other nonlitigious dispute resolution.

This article uses a critical theoryllegal mobilization perspective to study the 1987–92 trade union boycott of the British Columbia labour law. The problems encountered establishing a total boycott–one that would eschew all contact with the state–and the subsequent modification of the parameters of the boycott through a selective reliance on the law offer an important case from which to learn more about the role of law and legal rights in highly regulated organizations and how collectives mobilize the law. The author argues that legal rights are important to unions because of their ability to mediate the complexity of labour relations through a decentralization of authority. At the same time, mobilization of the law for this purpose accentuates localized identities and unequal resources that operate in tension with a boycott ethos, necessitating a deliberative politics to legitimize the law. By exploring the tension between these two forms of mobilization around law–one to reduce complexity, another to legitimize broad collective norms–the author analyzes and draws some conclusions about the reproduction of social unionism in British Columbia.

It is, of course, both a privilege and a challenge to have one's work attended to in the thorough and thoughtful manner exemplified by Professors Suchman and Edelman's and Professor Sutton's essays. The New Institutionalism in Organizarional Analysis has been subject of many review symposia—in journals of accounting, business, political science, and sociology. But the traffic has never been two-way: our work is typically imported into new domains, but here we also have the opportunity to see how law and society research might enhance institutional analysis. In reading and reflecting on these valuable commentaries, I am pulled by divergent reactions: “Why didn't we think of that?” and “that's not what we meant” are the most common. But rather than play out these responses in print, I plead nolo contendere and concur with Suchman and Edelman's contention that institutional analysis has treated the law and the legal environment in an overly determinist fashion. In focusing on the letter of the law and its purported impact, institutional analysis neglects the extent to which the law and the legal environment are subject to negotiation, interpretation, and contestation.

Suppose Charles Reich had typed “The New Citizenship” on the first page of his article. He might have rediscovered republicanism a generation earlier than the neo-republicans of the 1980s. Perhaps he might even have understood that a right to some minimum of property, sufficient to guarantee the independence essential to the exercise of citizenship rights, could be derived from concepts of republican citizenship.

This article draws on interview data from California's Silicon Valley to explore the role of local business attorneys in shaping the market for high-technology start-up financing. Far from exerting a disruptive or disputatious influence on business relations, Silicon Valley lawyers actively facilitate the functioning of the region's venture capital sector. In particular, attorneys intervene in the start-up process to absorb, suppress, and avert crucial uncertainties that might otherwise elevate transaction costs, imperil economic activity, and foster interorganizational discord. Local law firms moderate the hazards of new-company financing in at least three distinct ways: (1) by directly absorbing economic uncertainties in individual transactions; (2) by constructing, preserving, and reproducing normative and cognitive understandings within the community as a whole; and (3) by incorporating these local practices into the external legal regime.