Vol. 12 No. 1 (January 2002) pp. 42-45.
ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW by Robert A. Kagan. Cambridge, MA: Harvard University Press.
339 pp. Cloth $49.95. ISBN: 0-674-00621-6.
Reviewed by Charles R. Epp, University of Kansas.
Robert Kagan's new book is a tour de force. It is an elegantly written, consistently insightful analysis and critique
of the American emphasis on litigation and punitive sanctions in the policy and administrative process. The book
does not report new, original research but is a synthesis of the work of Kagan and his colleagues, as well as many
other scholars, over the last generation. As such, the book may be particularly useful for graduate seminars and
sophisticated undergraduate courses. Many readers, along with me, may quibble with aspects of Kagan's analysis,
but I suspect that few will fail to respect his considerable achievement.
Kagan's thesis is that the U. S., in contrast to other advanced industrialized countries, is subject to adversarial
legalism, or a "legal style" that emphasizes lawyer-dominated litigation in policy making, policy implementation,
and dispute resolution. Other advanced industrialized countries, Kagan argues, experience widespread litigation
but typically constrain its adversarial aspects and pursue policy implementation through professional management
by judges and bureaucrats. Our national reliance on adversarial lawyering rather than bureaucratic solutions produces
benefits (such as relatively open access and influence by otherwise excluded interests), Kagan acknowledges, but
these benefits are generally outweighed by costs, particularly financial costs, time delays, uncertainty, and the
erosion of trust and good will. Others, of course, have made this claim as well. The signal virtue of Kagan's
book is that it goes beyond summarizing adversarial legalism's costs by offering a comparative explanation of the
sources of adversarial legalism and, on this basis, proposing reforms that may ameliorate its worst costs. The
main sources, Kagan argues, lie in a fundamental tension between two powerful forces, a rising tide of demands
for what Lawrence Friedman (1985) has called "Total Justice," and an exceptionally fragmented governing
structure that limits the capacity of the American state to satisfy these demands through centrally-coordinated
administrative systems. Lawyer-dominated litigation thus results from the relative weakness of bureaucratic alternatives
for achieving policy goals.
The first three chapters frame the book's analysis. Chapter 1 defines the central concept, adversarial legalism,
and summarizes the main aspects of the book's thesis. Kagan significantly observes that, although there is litigation
in other countries, American-style litigation is uniquely dominated by lawyers (as distinct from judges). Although
there is less litigation in the U. S. than is often believed, THREATS and PRECEIVED THREATS of litigation are very
widespread and exert significant influences on organizational behavior. Chapter 2, "The Two Faces of Adversarial
Legalism," summarizes the benefits and costs of a national reliance on lawyer-dominated litigation. Adversarial
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legalism has enabled some "have not" groups to influence the policy agenda; but adversarial legalism
also generates remarkably high transaction costs (for instance, some 40% or more of tort benefits from auto accidents
go to lawyers), uncertainties as to the requirements of law and legal policy, and delay. Chapter 3 sets forth
Kagan's analysis of the structural and political sources of adversarial legalism.
The bulk of the book's analysis pursues these themes-adversarial legalism's benefits, costs, and the absence of
bureaucratic alternatives-through an analysis of criminal justice, civil justice, and regulation. With regard to
criminal justice, Kagan argues that American criminal law, in contrast to other advanced industrialized countries,
is especially punitive, malleable, and inconsistent in application. The cumbersome and unpredictable nature of
full criminal trials drives all key criminal justice players to avoid trials in favor of plea bargaining, and plea
bargaining, in the context of the American justice system's fragmentation and emphasis on prosecution-dominated
procedures, produces dramatic inconsistencies in outcomes across criminal cases and jurisdictions. Variations
in defendants' resources for
hiring defense counsel contribute greatly to these disparities. European systems place much greater emphasis on
accurate fact-finding and analysis by highly professionalized police and prosecutors. Kagan acknowledges that
aggressive defense tactics in some cases have forced American police and prosecutors to professionalize, but he
emphasizes that the American system still tolerates vastly greater disparities among jurisdictions and defendants
than occurs in Europe. Thus, Kagan ultimately concludes, American criminal justice is less efficient AND less fair
than European systems.
With regard to civil justice, Kagan focuses on tort law, and again argues that the American system is less efficient
and less fair than European systems for compensating the injured. Those systems generally offer relatively generous
compensation for injuries, through state-managed bureaucratic systems. Kagan acknowledges that American tort
law is more responsive to popular pressures for the development of new causes of action and mechanisms for holding
accountable large corporations and government agencies. But in routine cases, injured workers and drivers fare
more unpredictably and, often, worse, than their counterparts in European systems.
In examining the regulatory state, Kagan focuses on three distinct policy realms: welfare, social regulation (e.g.,
workplace safety), and property development and environmental protection. With regard to welfare, Kagan observes
that adversarial legalism has been used to eke out some reforms of the regulations governing eligibility, but has
been incapable of generating a European-style safety net. With regard to social regulation, Kagan argues forcefully
that neo-corporatist policy processes (incorporating key producer interests in the development of policy) are more
effective than the American emphasis on detailed rules and punitive enforcement at generating voluntary cooperation
and compliance by regulated industries. With regard to economic development and environmental protection, Kagan
argues that adversarial legalism's most important effect has been to delay or kill worthy development projects,
often with questionable benefits to the environment.
Kagan's concluding chapter proposes reforms. In it, Kagan argues that "tort reform" measures--for instance,
placing caps on damages--are unlikely to
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greatly shift our national legal style away from a reliance on lawyer-dominated litigation. He argues that the
only effective way to achieve that purpose will be to enhance bureaucratic capacity, authority, and discretion
over the policy process, and to enhance the power of judges in relation to private parties' lawyers. As Kagan
observes, such authority-enhancing reforms are likely to be regarded as virtually unthinkable by most legal and
political elites. A primary barrier to effective reform is the "legal parochialism" (p. 250) of American
elites: they are remarkably unaware of solutions adopted in other countries and thus incapable, at present, of
conceiving fundamental reforms.
ADVERSARIAL LEGALISM is in many ways a breath of fresh air. Political elites, scholars, and college students alike
may find much that is new and surprising in this book - and it is Kagan's key purpose to surprise and stimulate
fresh thinking about the range of possibilities for addressing policy problems. His argument is equally critical
of the Republican party's sympathy for corporate defendants and the Democratic party's sympathy for underdog plaintiffs,
and he is virtually unique among prominent legal voices in calling for more government, more bureaucratic discretion,
and, at the same time, less opportunity for legal challenge to government and corporate policy. Kagan is also
appropriately realistic in recognizing that his critique and reform proposals are greatly out of step with reigning
patterns of populist distrust of governmental and corporate power and faith in self-help legal activism, and thus
that his proposals are unlikely to succeed in the near future.
Now for my quibbles. Kagan's proposed reforms are refreshingly radical and sweeping--but among them, it seems
to me, the most likely to be adopted are reforms that would enhance governmental and/or corporate power at the
expense of fairness. For instance, in the area of criminal justice, Kagan proposes granting greater state control
over local police, prosecutors, and judges; adjudicating most criminal cases in trial courts that use simple procedures
but have authority to mete out only limited sanctions; reducing criminal sanctions generally to European levels;
and eliminating the right to silence. These reforms would increase the professionalism of local criminal justice
authorities, focus the criminal justice process on reliable and efficient processing of the accused, and reduce
defendants' incentives to fight adversarially against conviction. To my mind, the most important of these reforms,
and by far the least likely to be enacted, is the first (eliminate the autonomy of local police and prosecutors)--and
yet without it, all of the other reforms would enhance state authority at stiff costs to fairness. Thus, with
regard to abuses still found in American policing, a full European-style bureaucratic solution would require remarkably
fundamental changes in the structure of the American state: the control, staffing, funding, and regulating of local
police departments would need to be shifted from local government to state governments or even to the national
government. Only then could we be assured of similar levels of police professionalism, discipline of abusive officers,
and the like, throughout all local police agencies. And in the absence of such European-style top-down bureaucratic
controls (which, obviously, are very unlikely), limitations on adversarial legalism in criminal defense, and limitations
on lawsuits against the police would surely make life easier for police officers and prosecutors but also would
remove the limited mechanisms presently in place for
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encouraging the development of police professionalism.
A second quibble is that while Kagan acknowledges studies that appear to contradict his thesis, to my mind he somewhat
downplays their significance. For instance, Jeffrey Sellers' (1998) illuminating comparative study of property
development litigation found that interest groups and neighborhood associations in France and Germany turned to
the courts to block development projects with as much frequency as did similar U. S. groups. Eric Feldman's (2000)
comparative study of policy responses to AIDS-tainted blood supplies found that courts in France and Japan were
heavily involved in addressing the issue and, indeed, were more responsive to victims than were U. S. courts.
Tate and Vallinder (1995) and many others have found that courts in a wide range of other countries have become
involved in the policy process in the last generation. These studies suggest the possibility that the vast differences
in legal style between the U. S. and other countries may be narrowing, perhaps substantially. Undoubtedly, however,
as Kagan argues, the U. S. IS different in important ways, and he masterfully elucidates these differences.
Robert Kagan's ADVERSARIAL LEGALISM is a major contribution to ongoing, vibrant debates over the state of the American
justice system. The freshness
of Kagan's perspective, the comprehensiveness of his coverage, the elegance of his composition, and the thoughtfulness
of his analysis make the book a "must read" for scholars of law and courts. These qualities also make
the book ideal for assignment in college courses. Its utility in this regard is somewhat handicapped by the unavailability
of a paperback edition and the remarkably high price of the hardcover edition. I hope the book will become available
in paper very soon. It deserves a very wide readership.
Feldman, Eric A. 2000. "Blood Justice: Courts, Conflict, and Compensation in Japan, France, and the United
States," LAW & SOCIETY REVIEW 34:651-702.
Friedman, Lawrence M. 1985. TOTAL JUSTICE. New York: Russell Sage Foundation.
Sellers, Jefferey M. 1995. "Litigation as a Local Political Resource: Courts in Controversies over Land Use
in France, Germany, and the United States," LAW & SOCIETY REVIEW 29: 475-516.
Tate, C. Neal, and Torbjorn Vallinder. 1995. THE GLOBAL EXPANSION OF JUDICIAL POWER. New York: New York University
Copyright 2002 by the author, Charles R. Epp.