Legal logics of scale and racial consciousness in affirmative action jurisprudence

The article analyzes the "logic of scale" in affirmative action law from Regents of California v. Bakke (1978) through the 2003 University of Michigan cases. The arc of cases shows how the legal system has used institutional and geographic hierarchies to evaluate the constitutionality of affirmative action programs. During this period, the Supreme Court recognized both diversity rationales and remedial justifications for racially conscious policies. The Court began with a contentious, qualified endorsement of diversity justifications, then shifted its attention to remedial justifications during the 1980s and 1990s before returning to diversity issues in the Michigan cases. Under remedial theories, courts have used a logic of scale to separate cause, effect and remedy. The separation by scale restricted affirmative action policies to institutions and jurisdictions seen to be directly responsible for discrimination without regard to the scale of discrimination's effects.