Throughout American history, a peculiar and recurrent disjunction has often arisen between the substance of transformative reforms and the decidedly less-radical governing arrangements that arise in the aftermath of reform. To account for this disjunction, this article puts forth a theory of postreform “recalibration.” Political processes of recalibration are the means by which vague, indeterminate principles of reform are given operational meaning and translated into new governing arrangements. This article illuminates recalibration processes by examining two case-studies: African American rights in the post-Reconstruction era of the 1870s and 1880s, and labor rights in the post–New Deal era of the late 1930s. Finally, the article also highlights the crucial role of the Supreme Court in recalibration processes and sets forth a theory of judicial behavior as driven by an institutional interest in stability.

This article reports the results of a study that uses social network analysis to compare the persuasiveness of legal precedents in the diffusion of the strict liability rule for manufacturing defects. This new study tests which legal precedents were most influential and also whether certain state judicial variables influenced the diffusion process. The results are striking. The federal circuit regions appear to define an important reference group in the diffusion process, and social network effects dominate economic and political variables. In addition, the de facto separation of powers in the enactment of new state legislation appears to influence courts' propensities to adopt the strict liability rule. When the executive and legislative branches were controlled by the same political party, regardless of whether it was Republican or Democratic, state courts were more inclined to adopt the strict liability rule.

People in all societies have a tendency toward magical thinking. This human inclination is extensively exploited by modern advertising, which routinely suggests that consuming goods will make us successful, happy, and fulfilled. In this article, I suggest that such advertising creates a system of beliefs resembling a totemic religion. In this religion, brands perform the role of sacred objects.

Trademark law initially aims at preventing consumer confusion. Yet, today, famous trademarks are extensively protected against nonconfusing associations. I argue in this article that this broad protection is based on magical thinking. Pointing out the parallels between the laws of magic and trademark doctrines, such as the doctrine of dilution, I suggest that famous marks are legally treated as magical, sacred objects. This legal approach amounts to endorsing the commercial religion of brands.

This article explores the federal marine hospitals of the early republic, the first public health care system in US history. Beginning in 1798, the federal government collected twenty cents per month from mariners' wages and used this revenue to subsidize medical care for sick and disabled merchant mariners. Previous studies have traced links between marine hospitals and modern public policy. By studying governance from the bottom up, this article takes a different approach. I argue that jurists, physicians, and officials' regulation of sailors' entitlement to public health care facilitated and reflected a transformation of national authority. Between 1798 and 1816, sailors' entitlement was a local matter, based on the traditional paternalist understandings of maritime laborers as social dependents. By 1836, though, the federal Treasury redefined entitlement around a newly calculus of productivity: only the productive were entitled to care at the marine hospitals. This story about governance, federal law, and political economy in the early United States suggests that the early American state was a more vibrant participant in the market and society than has been previously understood.

Examining qualitative historical evidence from cases of federal regulation in the areas of labor, civil rights, and environmental policy, this article provides support for the hypothesis that divergence between legislative and executive preferences—a core and distinctive feature of the American constitutional order—creates an incentive for Congress to rely upon private lawsuits, as an alternative to administrative power, to achieve its regulatory goals. It also shows that this mechanism encouraging statutory mobilization of private litigants had been operative long before its powerful growth started in the late 1960s, that it operated in similar fashion with Republican legislators facing Democratic presidents and Democratic legislators facing Republican presidents, and that it remained a source of controversy and an active influence on congressional decision making throughout the half century covering the 1940s through the 1980s.

This article provides a neoinstitutionalist account of how a transnational social movement (TSM) sets its agenda. A theoretical framework is presented to reveal how logics from the transnational and local organizational fields influence legal mobilization. To provide insight into how a TSM accommodates contradictory and competing logics within and between these fields, this article examines mobilization around a fact-finding commission, sometimes called a truth commission, to address the ongoing social and political divides in Bosnia and Herzegovina (BiH). The findings, based on fieldwork conducted between 2009 and 2011, are used to develop the theoretical concept of a quasi-judicial medium, a legal body that, initially, will appeal to a variety of actors, but may be unable to adequately address existing divides. The conclusions point to further directions in the study of transnational legal mobilization, particularly the conditions under which the ambiguity of a movement strategy helps meet and/or moderate movement goals.

Recent literature on comparative judicial politics reveals a variety of roles that courts adopt in the process of democratization. These include, very rarely, serving as a trigger for democratization and, more commonly, serving as downstream guarantor for departing autocrats or as downstream consolidator of democracy. In light of these roles, this article reviews six relatively recent books: Courts in Latin America, edited by Helmke and Rios-Figueroa (2011); Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile, by Hilbink (2007); Cultures of Legality: Judicialization and Political Activism in Latin America, edited by Couso, Huneeus, and Sieder (2011); The Legacies of Law: Long-Run Consequences of Legal Development in South Africa, 1652–2000, by Meierhenrich (2008); Judging Russia: Constitutional Court in Russian Politics 1990–2006, by Trochev (2008); and New Courts in Asia, edited by Harding and Nicholson (2010).

This article reexamines the question of how best to restrain executive power in a political and social context that seems to favor its dramatic expansion. Modern interventionist government amidst a dynamic social environment, where the executive faces a seemingly endless series of “crises” or “emergencies,” provides a heightened scope for executive discretion. At the same time, the US-style separation of powers, in which an independent president faces a potentially obstinate Congress, offers executives many incentives to exploit crises, real or otherwise. The works examined in this article confront, with varying degrees of success, the seemingly inexorable expansion of executive power within the US version of liberal democracy. We can only hope to deal with the many intellectual and political tasks posed by the symbiotic nexus between executive-centered and crisis-oriented government by confronting some tough questions about US constitutional design and the possibility of radical institutional reform. Unfortunately, even those scholars who provide plausible accounts of the US system's fragilities seem hesitant to do so.