Adversarial Legalism Research Articles

Legalism without adversarialism?: Bureaucratic legalism and the politics of regulatory implementation in the European Union

AbstractMany scholars predict that European integration will foster adversarial legalism in Europe. In this article, I empirically assess the Eurolegalism thesis by examining EU regulatory mandates in the competition and securities fields, two policy areas where adversarial legalism is seen as most likely to develop. I argue that the diffusion of adversarial legalism to Europe has faced significant political opposition in the EU policymaking process which has curtailed the use of private enforcement mandates in EU secondary legislation. European policymakers have relied more on administrative enforcement through public regulatory agencies, a mode of policy implementation closer to bureaucratic legalism. In practice, public authorities play the primary enforcement role and private litigation serves the narrower function of compensation following public enforcement actions. Drawing from institutionalist theory, I identify several factors that have encouraged the development of bureaucratic rather than adversarial styles of European legalism, especially member states' commitments to procedural subsidiarity, the negative feedback effects from the US experience with entrepreneurial litigation, and the stickiness of European legal and bureaucratic traditions.

The Same Only Different: Reflections on Robert Kagan’s Adversarial Legalism

Robert A. Kagan’s influential book, first published at the beginning of the twenty-first century, is now brought up to date with a second edition. “Adversarial legalism,” in Kagan’s view, distinguishes law in the United States from the law of other developed countries in many ways, for example, heavy use of policymaking through litigation and punitive regulation, as opposed to bureaucratic and conciliatory techniques. He suggests that this situation is likely to continue. This essay, however, looks at the same phenomena from the standpoint of similarities rather than differences. It suggests that powerful economic and cultural forces, common to the modern world of developed countries, tend to push the legal systems of these countries in parallel directions. Convergence, rather than divergence, is therefore the trend in the legal systems of the Western world; and this trend is likely to continue in the future.

Dieselgate and Eurolegalism. How a scandal fosters the Americanization of European law

ABSTRACT The paper deals with the conflicts associated with the so-called ‘Dieselgate’ affair. It explains the interaction of civil society, law firms and political actors which reshapes the legal systems in Europe. Once the federal government in Germany had decided that European car owners should not get any kind of financial compensation, a transnational coalition of consumer organizations and law firms successfully initiated a legal mobilization campaign to counteract the political decision. As a consequence, collective litigation rights were strengthened in Germany and at the European level. Theoretically, the paper refers to the literature on adversarial legalism. Whether this judicialized style of conflict resolution is spreading to Europe (‘Eurolegalism’) has been a hotly debated topic in political science. Our main argument is that the Dieselgate case is a catalyst event to foster the transformation process towards ‘Eurolegalism’.

Untangling the Concept of Adversarial Legalism

The concept of adversarial legalism has been widely used by scholars of law, public administration, public policy, political science, sociology, and Law and Society, but the varying ways in which the concept has been employed raise concerns that it has become stretched to the point of incoherence. We argue that adversarial legalism entails both a style, an everyday practice of dispute resolution and policy making with distinct attributes, and a structure of governance that can be compared to other structures of authority. Untangling these aspects of adversarial legalism allows us to make sense of its different uses and identify future avenues of inquiry. Despite its wide application, adversarial legalism is in fact underutilized, especially in studies aimed at understanding consequences of judicialization, legalization, and juridification in the United States and abroad.

Stemming the Tide of Illiberalism? Legal Mobilization and Adversarial Legalism in Central and Eastern Europe

This paper explores the rise of rights-based regulation through litigation as a distinctive feature of legal culture in Central and Eastern Europe post-1989. This type of adversarial legalism was born at the intersection of post-communist, European integration, and neoliberal discourses, and is characterized by legal mobilization at national and supranational levels, selective adaptation of adversarial mechanisms, and the growth of rights consciousness. The paper distinguishes Eastern European developments from both American and Western European types of adversarial legalism, assesses the first quarter century of post-communism and represents a first step towards constructing a genealogy of the region's legal culture post-1989.

Stemming the tide of illiberalism? Legal mobilization and adversarial legalism in Central and Eastern Europe

This paper explores the rise of rights-based regulation through litigation as a distinctive feature of legal culture in Central and Eastern Europe post-1989. This type of adversarial legalism was born at the intersection of post-communist, European integration, and neoliberal discourses, and is characterized by legal mobilization at national and supranational levels, selective adaptation of adversarial mechanisms, and the growth of rights consciousness. The paper distinguishes Eastern European developments from both American and Western European types of adversarial legalism, assesses the first quarter century of post-communism and represents a first step towards constructing a genealogy of the region's legal culture post-1989.

Adversarial Legalism and Biodiversity Protection in the United States and the European Union

AbstractThis article compares the use of litigation to enforce species protection law in the European Union (EU) with that of the United States (US). Recent legal disputes over wolf hunting on both continents offer useful case studies. Focusing on three aspects of litigation – namely, (i) against whom claims are brought, (ii) who can bring claims, and (iii) the types of claim that can be brought – the analysis contrasts US-style adversarial legalism with its European counterpart, or ‘Eurolegalism’, and assesses what each approach is able to deliver in terms of the legal protection of wolves. It is argued that Eurolegalism helps to explain the development of species protection law in the EU and its similarities to and differences from the American experience.

Amalia D. Kessler. Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800–1877.

Amalia D. Kessler’s Inventing American Exceptionalism is a richly detailed history that examines legal adversarialism as a readily apparent but often taken for granted element of U.S. legal culture. Idealized as a mode of common-law legal procedure in which lawyers settle disputes for independent parties through the examination of oral testimony in public proceedings, adversarial legalism has come to be seen as intertwined with key elements of U.S. national identity such as competitive individualism and liberal anti-statism. Yet Kessler argues that the broad adoption of adversarial legalism was never foreordained. Inventing American Exceptionalism shows the development of the peculiar commitment toward adversarialism as other models of dispute settlement and adjudication lost credibility within particular social, political, and historical contexts. The story thus revolves less around adversarialism per se than it does around the great alternative to the common law: equity. Derived from civil law traditions, equity courts followed a “quasi-inquisitorial” approach to procedure in which court officials conducted fact-finding through written testimonies that were kept secret during the investigation. Equity also had recourse to unique remedies such as the injunction. Kessler examines the origins of equity in Roman law and the English treatise literature, but her primary focus is on the uptake of this approach in the New York Court of Chancery and on the later moments in which courts and tribunals experimented with equity proceedings, such as in conciliation courts in Florida and California or the Freedman’s Bureau Courts established during Reconstruction.

Framed? Judicialization and the Risk of Negative Episodic Media Coverage

Activists on the left and right have increasingly turned to the courts to make policy, raising questions about the potential risks of judicialization. One possibility is that litigation is more prone to negative episodic media coverage than alternative modes of policymaking. Using across- and within-policy area comparisons of stories about the Federal Black Lung Program, collective asbestos litigation strategies, and individual asbestos tort suits, we find that coverage becomes steadily more episodic and critical as it focuses on policy regimes that feature increasing amounts of adversarial legalism. Moreover, even the broadest coverage of asbestos litigation fails to explain why victims of asbestos turned to the courts, how powerful interests constrained their policy options, or how judges urged Congress to act. This limited and relatively critical anecdotal reporting implies that litigation may engender less favorable media coverage than its alternatives and that activists should weigh this risk when deciding to litigate.

Framed? Judicialization and the Risk of Negative Episodic Media Coverage

Activists on the left and the right have increasingly turned to the courts to make policy, raising questions about the potential risks of judicialization. One possibility is that litigation is more prone to negative episodic media coverage than alternative modes of policymaking. Using across and within-policy area comparisons of stories about the Federal Black Lung Program, collective asbestos litigation strategies, and individual asbestos tort suits, we find that coverage becomes steadily more episodic and critical as it focuses on policy regimes that feature increasing amounts of adversarial legalism. Moreover, even the broadest coverage of asbestos litigation fails to explain why victims of asbestos turned to the courts, how powerful interests constrained their policy options, or how judges urged Congress to act. This limited and relatively critical anecdotal reporting implies that litigation may engender less favorable media coverage than its alternatives and that activists should weigh this risk when deciding to litigate.

Kagan's Atlantic Crossing: Adversarial Legalism, Eurolegalism, and Cooperative Legalism

In this contribution to Varieties of Legal Order, a book inspired by Robert Kagan’s scholarship, we review the debate on the spread of American “adversarial legalism” to Europe. In the 1990s, Kagan developed the concept of adversarial legalism to capture the distinctive litigiousness of the American regulatory system, and asked whether it might take hold in Europe. In our research that followed, we put forward different answers. R. Daniel Kelemen concluded that a legal style akin to adversarial legalism—one which he eventually termed Eurolegalism—was in fact spreading across the European Union. Drawing on her case study of the data privacy field, Francesca Bignami argued that EU regulation was not evolving into adversarial legalism, but rather had come to rely more on agency enforcement and private-sector cooperation, a style she called “cooperative legalism.” The chapter links the discussion of our own work with other important contributions to the debate on European regulation. It concludes by underscoring the enduring importance of understanding the European regulatory style and by highlighting the issues on which future research will be crucial.

The visibility of environmental rights in the EU legal order: Eurolegalism in action?

ABSTRACTThe current article responds to a key puzzle and a question. First, why, given the potential for ‘rights talk’ that has been seen in other countries and other policy areas, have environmental rights in the European Union (EU) legal order been relatively invisible until recently? And second, with Daniel Kelemen’s influential work on Eurolegalism arguing that the EU has become much more reliant on United States-style adversarial legalism, including a shift towards rights-based litigation, do EU environmental rights fit the picture Kelemen has painted, or are they an exception? The article explores the visibility of EU environmental rights at EU level and then seeks to explain the possible reasons for visibility/invisibility.

Three-Quarters Empty or One-Quarter Full? Martha Derthick on the Courts, Federalism, and Public Policy

During the last two decades of her career, Martha Derthick wrote extensively on the role of courts; but this work has received little attention compared to her earlier scholarship. This article analyzes her primary concerns about the judiciary. For her, courts, both federal and state, often abetted centralization, made government less representative, engaged in their own forms of judicial demagogy, and made policymaking more theoretical, less practical, and therefore less effective. This article addresses each of these concerns as they emerged in Derthick’s work on federalism, tobacco politics, and education. Even though she was pessimistic about the effects of adversarial legalism on the U.S. constitutional system, there were signs in her scholarship that the system might be less fragile than she feared. I conclude by discussing areas where courts retreated to, what to her, was a more defensible position.

How policy shapes politics: rights, courts, litigation, and the struggle over injury compensation

List of Figures List of Tables Acknowledgements Chapter 1. Introduction Chapter 2. Congressional Hearings and the Politics of Adversarial and Bureaucratic Legalism Chapter 3. Social Security Disability Insurance: The Politics of Bureaucratic Legalism Chapter 4. Asbestos Injury Compensation: The Politics of Adversarial Legalism and Layered Policies Chapter 5. Vaccine Injury Compensation: The Politics of Shifting Policies Chapter 6. Conclusion Appendix I: Hearing Data Appendix II: Model of Hearing Participation Appendix III: Content Analysis of Interest Group Positions on the FAIR Act in the Media Works Cited Cases Cited

The Settlement Game: A Simulation Teaching Institutional Theories of Public Law

AbstractMany political science subfields use classroom simulations. Public law, however, suffers from a lack of such activities. Many mock trials exist, but these games focus on jurisprudence and not on the more institutional aspects of the subfield. This article presents the Settlement Game, an original simulation that takes 15 minutes to complete and helps teach important institutional theories such as adversarial legalism, “bargaining in the shadow of the law,” and “haves” versus “have-nots” concepts heretofore overlooked by the simulations literature. I introduce relevant theories and describe how the simulation works, discussing preclass assignments, its operation, and debriefing about its connection to theory. I close with comments about assessment of students and explain why the Settlement Game is useful.

Blaming: Harm Attribution in the United States and Japan

Do Americans interpret accidents in a culturally distinct way? This Article addresses the possibility of an affirmative answer; such a tendency has significant implications for comparative law studies of accidents and the attribution of harm. Differences in how individuals perceive accidents can translate into differences in how legal systems relate to their underlying society. This Article also reports the results of an empirical study designed to test the hypothesis that people understand accidents in culturally-inflected ways; this study was done as a preliminary effort to spark further discussion concerning harm, attribution and culture. Subjects in the United States and Japan reviewed a nonverbal cartoon illustrating an accident that could be attributed to multiple factors and then were presented with a second set of images illustrating those factors. Some of the factors were images of human actors, and were thus more immediately suggestive of human agency; others were images of machines, animals or conditions. Respondents were then asked to mark the images, if any, that they considered to be the factors to attribute the harm to. Results of the study were consistent with the hypothesis that Americans, in contrast to Japanese, were less likely to decide not to attribute harm to any particular cause, were less likely to attribute harm to the overall situation, and in some cases, more likely to attribute harm to a salient human action. These findings suggest that a line of empirical inquiry may be relevant to debates on the comparatively high U.S. litigation rate. In particular, if U.S. attitudes towards causation, blame and liability tend to favor attributing harm to human action, then judicial resolution between plaintiffs and defendants may simply reflect U.S. attitudes. Additionally, the U.S. commitment to “adversarial legalism” may reinforce how Americans view accidents. As a result – and contrary to the claims of a generation of U.S. scholars on Japanese law – individual Americans may indeed be more “litigious” than their Japanese counterparts – if that term is redefined as the tendency to see things from the viewpoint of a potential litigant. With the caveat that further investigation is warranted, the divergence identified here should be taken into account in international and comparative law: these fields may be on a collision course with behavioral law and economics.

Adversarial Legalism and the Emergence of a New European Legality: A Comparative Perspective

This essay explores two interrelated questions. First, what are the sources of the current legal culture in the United States and Europe, and second, what, anything, can be said about how European legal culture could change in the face of increasing conflict between citizens and the state over the definition and content of social rights? The essay begins by refining the concept of legal culture employed in the analysis. While accepting the conventional accounts offered by scholars like Lawrence M. Friedman, James L. Gibson and Gregory A. Caldeira, it adopts a more expansive definition which employs Erhard Blankenburg’s methodology, which gives equal weight to legal rules and institutions as to legal consciousness, that is, social attitudes towards the law. Next, the essay explores the ways in which the contrasting legal consciousnesses found in the United States and Europe have informed the public/private distinction in the two legal cultures. In particular, the chapter emphasizes the degree to which in the United States elite legal consciousness moved between the two opposing poles of instrumentalism and formalism, while in Europe legal culture has been dominated until quite recently by a dogmatic tradition that views law as independent of politics. The essay investigates the degree to which adversarial legalism is the legal culture of the United States and observes that adversarial legalism has produced more political gains in private rights such as tort and contract than in public rights, such as the right to welfare or healthcare. Conversely, as some such as Mark Osiel has observed, European legal culture has produced a sphere of private right in which law is seen as marginal to political contestation but where social rights have been successfully secured through politics, and not legal intervention. The essay concludes by considering whether, as conflict over social right become more intense in Europe (due to the contraction of the economic basis of the welfare state), European citizens will look to legal tools made available through the European Union to press their claims in law as opposed to politics. It further asks, whether, if this were to occur, that the turn to law would necessarily mean a change in legal culture and an increase in legal adversarialism in Europe.

Review of Adversarial Legalism Book & Reviews

This paper is a review of Robert Kagan's book, Adversarial Legalism, The American Way of Law, through a comparative law perspective. It also draws lessons and conclusions from other reviews in this book, and also highlights important points made by Kagan as well as other reviewers.

Global Adversarial Legalism: Global Private Governance of FDI as a Species of Global Administrative Law

This paper argues that the fractured nature of the governance of foreign direct investment ('FDI') has given rise to a two-faceted 'global adversarial legalism.' One facet of this global adversarial legalism, already much debated, is the concern that investment arbitration tribunals exercise an overly broad and perhaps illegitimate form of 'global administrative review' of State measures. This paper focuses on the other side of this global adversarial legalism that has not received sufficient scholarly attention: the advent of FDI-impacted individuals and communities alleging violations of voluntary transnational norms espoused by corporate actors involved in regimes of global private regulation. The primary example of this more recent phenomenon is the emergence of the Equator Principles, a regime of private global governance created by investment banks. The EPs standardize the banks’ environmental and social risk management of their investments in large infrastructure projects developed in host states whose weak regulatory capacities fail to prevent or mitigate project impacts.Just as arbitral clauses in public contracts can internationalize a dispute for resolution by a transnational arbitral tribunal, the EPs’ application to a project loan expands the substantive criteria applicable to project review and creates additional layers of review of corporate compliance with national and international norms. This interaction also creates a complicated dynamic with regard to State sovereignty and decision making related to national development agendas. By creating a global standard, the private regime empowers civil society actors and others not party to the underlying contracts to intervene in national debates and inter-governmental branch dialogue concerning project review and approval, thereby instantiating a quasi-administrative review that has powerful effects in the court of public opinion, even though - unlike traditional treaty-based transnational legal processes - the States have not themselves consented either to the substantive norms nor to the ‘jurisdiction’ of these processes. The paper also addresses the challenging normative implications of such adversarial legalism: how the protection of marginalized communities and ecosystems can impose broader societal transaction costs on national economic development.

Eurolegalism: the transformation of law and regulation in the European Union

Despite western Europe's traditional disdain for the United States' adversarial legalism, the European Union is shifting toward a very similar approach to the law, according to Daniel Kelemen. Coining the term eurolegalism to describe the hybrid that is now developing in Europe, he shows how the political and organizational realities of the EU make this shift inevitable. The model of regulatory law that had long predominated in western Europe was more informal and cooperative than its American counterpart. It relied less on lawyers, courts, and private enforcement, and more on opaque networks of bureaucrats and other interests that developed and implemented regulatory policies in concert. European regulators chose flexible, informal means of achieving their objectives, and counted on the courts to challenge their decisions only rarely. Regulation through litigation--central to the U.S. model--was largely absent in Europe. But that changed with the advent of the European Union. Kelemen argues that the EU's fragmented institutional structure and the priority it has put on market integration have generated political incentives and functional pressures that have moved EU policymakers to enact detailed, transparent, judicially enforceable rules--often framed as rights--and back them with public enforcement litigation as well as enhanced opportunities for private litigation by individuals, interest groups, and firms.