American Lawyers, Legal Culture, and Adversarial Legalism

Abstract

Contemporary constitutional democracies all seem to value the rule of law, an independent judiciary, and a common core of basic legal principles. American judges are more diverse, more political, more autonomous than British judges, and their decisions are less uniform. Law in the United States is more malleable, open to novel legal and policy arguments put forth by parties and their lawyers. Adversarial legalism, of course, does not pervade the American legal order uniformly or completely. In some policy arenas, litigation and even the threat of it is infrequent. The importance of adversarial legalism in the United States cannot be measured by litigation rates alone, any more than the significance of nuclear weapons rests on the frequency of nuclear war. Public discussion of American adversarial legalism has focused primarily on whether it is good or bad. The American legal profession includes a very large number of especially intelligent, articulate, ambitious, wealthy, and well-connected people.