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Adversarial Legalism

Adversarial Legalism

The American Way of Law

Robert A. Kagan

ISBN 9780674039278

Publication date: 07/01/2009

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.


  • [This] 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… 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 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 cultural 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.

    —Charles R. Epp, Law and Society Review


  • Robert A. Kagan is Professor of Law and Political Science at the University of California, Berkeley.

Book Details

  • Harvard University Press

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