Adversarial Legalism: The American Way of Law

Author: Robert A. Kagan
Published: September 2001
Publisher: Harvard University Press
ISBN: 0674006216
Hardcover Book
Number of Pages: 352

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American methods of policy implementation and dispute resolution are more adversarial and legalistic when compared with the systems of other economically advanced countries. Americans more often rely on legal threats and lawsuits. American laws are generally more complicated and prescriptive, adjudication more costly, and penalties more severe. In a thoughtful and cogently argued book, Robert Kagan examines the origins and consequences of this system of "adversarial legalism." Kagan describes the roots of adversarial legalism and the deep connections it has with American political institutions and values. He investigates its social costs as well as the extent to which lawyers perpetuate it. Ranging widely across many legal fields, including criminal law, environmental regulations, tort law, and social insurance programs, he provides comparisons with the legal and regulatory systems of western Europe, Canada, and Japan that point to possible alternatives to the American methods. Kagan notes that while adversarial legalism has many virtues, its costs and unpredictability often alienate citizens from the law and frustrate the quest for justice. This insightful study deepens our understanding of law and its relationship to politics in America and raises valuable questions about the future of the American legal system.

Table of Contents
Preface
I Adversarial Legalism: Contours, Consequences, Causes
1 The Concept of Adversarial Legalism 3
2 The Two Faces of Adversarial Legalism 18
3 The Political Construction of Adversarial Legalism 34
II Criminal Justice
4 Adversarial Legalism and American Criminal Justice 61
5 Deciding Criminal Cases 82
III Civil Justice
6 Adversarial Legalism and Civil Justice 99
7 The Tort Law System 126
IV Public Law: Social Justice and Regulation
8 Adversarial Legalism and the Welfare State 159
9 Adversarial Legalism and Regulatory Style 181
10 Economic Development, Environmental Protection, and Adversarial Legalism 207
Conclusion: Can the United States Tame Adversarial Legalism? 229
Notes 255
References 285
Index 331

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