Adversarial Legalism Research Articles

Adversarial Legalism and Civil Litigation: Prospects for Change

Adversarial Legalism and Civil Litigation: Prospects for Change

Adversarial Legalism: The American Way of Law By Robert A. Kagan. Cambridge, MA: Harvard University Press, 2001. 339p. $49.95.

Robert Kagan has three main objectives in writing this book: to demonstrate that the American systems of criminal and civil law, social welfare, and environmental regulation are dominated by “adversarial legalism,” to critique and explain why it has taken hold in the United States, and to make proposals for reform in light of findings in the United States and the advanced capitalist nations of Europe, the Commonwealth, and Japan.

Regulatory Encounters: Multinational Corporations and American Adversarial Legalism

Regulatory Encounters reports on a path-breaking study of how government regulation of business in the United States differs in practice from regulation in other economically advanced democracies. In each of ten in-depth case studies, the contributors to this volume compare a particular multinational corporation's experience with parallel regulatory regimes in the United States and in Japan, Canada, Great Britain, Germany, The Netherlands, and the European Union, noting precisely which regulatory precautions were actually implemented in each country.The regulatory systems analyzed include aspects of environmental protection, product safety, debt collection, employees' rights, and patent protection. The studies in Regulatory Encounters indicate that the adversarial and legalistic character of American regulation imposes higher costs and delays on economic activity than comparable regulatory regimes in other economically advanced democracies, and often does not generate higher levels of protection for the public.

Bounded Evaluation: Cognition, Incoherence, and Regulatory Policy

1. See ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW 198 (2001) (Institutional results in overlapping, imperfectly coordinated regulation by numerous local, state, and federal agencies, which may be dominated by different political parties with different regulatory policy preferences.); OFFICE OF MANAGEMENT AND BUDGET, MORE BENEFITS, FEWER BURDENS: CREATING A REGULATORY SYSTEM THAT WORKS FOR THE AMERICAN PEOPLE (1996), available at http://whitehouse.gov/omb/inforeg/3_year_report.html (Given each agency's legitimate focus on its own mission, and the fact that the Federal government is a complex organization with programs dispersed among many different agencies, sub-agencies, and offices, it is not unusual to find regulations that are inconsistent, incompatible, or duplicative.); E. Donald Elliott & Gail Charley, Toward Bigger Bubbles, 13 FORUM APPLIED RES. & PUB. POL'Y 48 (1998) (arguing that the fragmentation of policymaking into separate regulatory programs makes it virtually impossible for comparative risk priorities to be set on a rational basis that even approaches maximizing the social benefit from a given level of investment); Alice M. Rivlin, Rationalism and Redemocratization: Time for a Truce, in WORST THINGS FIRST? 21, 26 (Adam M. Finkel & Dominic Golding eds., 1994) ([L]eft to its own devices, the political system comes up with what almost anybody would think of as bizarre answers and misallocations of resources-with too much spent on relatively low-risk phenomena and, at the same time, a relative starving of problems where the risks might be very high.). 2. OFFICE OF THE FEDERAL REGISTER, THE UNITED STATES GOVERNMENT MANUAL, 2001/2002 app. C, at 653-61 (2001) (listing more than 300 federal agencies whose regulations appear in the Code of Federal Regulations). See also John D. Graham, Speech to Weidenbaum Center Forum, Presidential Management of the Regulatory State (Dec. 17, 2001), available at http://www.whitehouse.gov/omb/inforeg/graham_speech 121701.html

Adversarial legalism: the American way of law

American methods of policy implementation and dispute resolution are more 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 this book, Robert Kagan examines the origins and consequences of this system of adversarial legalism. Kagan describes the roots of 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 legalism has many virtues, its costs and unpredictability often alienate citizens from the law and frustrate the quest for justice. This study aims to deepen our understanding of law and its relationship to politics in America and raises valuable questions about the future of the American legal system.

Fuzzy Legality and National Styles of Regulation: Government Intervention in the Israel Downstream Oil Market

This article examines the role of statute law in regulation and government intervention through a detailed historical case study of a crucial retail market. The history of state intervention in the Israeli oil supply market is dominated by “fuzzy legality,” a concept expounded in a former article. Legal fuzziness allowed the industry, acting in concert with the government regulator, to retain a lucrative, practically non–accountable arrangement in changing politico–economic climates. Three central forces encouraged continuing fuzziness: a “cloud” of state security, institutional stickiness that preserved colonial mandatory legal structures, and a prevalent national culture of nonlegalism. The article ends with a careful suggestion regarding the Israeli national style of regulation. Compared to American “adversarial legalism,” and its opposite, “consensual nonlegalism” the Israeli style may be termed “adversarial nonlegalism,” and holds less promise for balancing market and public interests.

Green by Choice? Cross-National Variations in Firms' Responses to EMS-Based Environmental Regimes

Environmental Management Systems (EMSS) represent a new generation of voluntary “beyond compliance” environmental policies that neither set substantive goals nor specify final outcomes. As a result, many stakeholder groups are lukewarm toward them. Since 1993 two major supranational EMSs—ISO 14001 and the European Union's Environmental Management and Audit Scheme (EMAS)—have been introduced. Firms receive formal accreditation after their EMS has been certified by outside verifiers. This accreditation can potentially bestow monetary and nonmonetary benefits on these firms.Firm-level EMS adoption patterns in the United Kingdom, Germany, and the United States vary, thereby suggesting that national contexts influence firms' responses to them. In Germany and the U.K. a significant number of sites have become either ISO 14001 or EMAS certified, while the take-up of ISO 14001 in the U.S. (EMAS is available only to European sites) has been less enthusiastic.This article begins with the hypothesis that firms in countries with adversarial economies— where regulators and business are on less than friendly terms—are less likely to adopt EMS-based programs. This hypothesis explains why ISO 14001 take-up has been relatively high in the U.K. and relatively low in the U.S. However, it cannot explain (1) the high rate of take-up of both ISO 14001 and EMAS in Germany, where the stringency of environmental legislation has been a contentious issue between the government and industry and (2) why EMAS has been more popular in Germany than in the U.K. This article argues that the original hypothesis, while largely correct, is underspecified. To better explain the cross-national differences in EMS adoption, one must take into account the type of adversarial economy (adversarial legalism versus prescriptive interventionism) and the nature of the policy regime (procedural versus substantive).

Beyond Legalism? Policy Ideas, Implementation Styles and Emulation-Based Convergence in Canadian and U.S. Environmental Policy

Past studies of the dynamics of U.S.-Canada environmental policy and policy-making have found little evidence of ‘weak’ convergence in this sector; that is, of Canadian policy moving towards the U.S. model of adversarial legalism, an implementation style based upon procedural policy instruments such as action-forcing statutes, citizen suits, and judicial activism. However, recent efforts at de-regulation and the reformation of government in the U.S., and moves towards multi-stakeholder policy-making in Canada, have altered the standard against which trends towards Canadian^ American convergence must be assessed. These reforms have moved the U.S. environmental regulatory system closer to that existing in Canada, in which regulations and other elements of the environmental regime are developed through negotiation rather than litigation. Since Canadian environmental implementation has also been altered over the same period, however, it is argued that a form of ‘strong’ convergence is emerging, in which both countries are moving not towards each other but towards a third, common, style, that associated with the development of self-regulation and voluntary initiatives under the influence of New Public Management ideas and principles.

Adversarial legalism and transaction costs:: The industrial-flight hypothesis revisited

Empirical evidence that firms respond to differences in environmental compliance costs among jurisdictions - the industrial flight hypothesis - has been mixed. In this paper we propose a new explanation for this ambivalence which also sheds light on an emerging paradox in overseas investment: U.S. capital outflows appear to be sensitive to rising abatement costs, yet the investment recipients are increasingly countries with comparably stringent environmental standards. Our explanation for this paradox is based on the role of regulatory process costs, usually left out of total compliance costs. Most empirical work has looked for capital movement in response to differential abatement costs, predicting that investment would flow from environmentally stringent regimes to those with more lax environmental regulations, for example, from the U.S. to some developing countries. But little evidence has been found of these pollution havens. If however, at the margin, it is the liability risks, uncertainties and other expenses generated by the legislative and adversarial approach to regulation in the U.S that constitute the most important compliance cost differentials, then we have been looking for U.S. capital outflows in the wrong places. We begin by providing some background on adversarial legalism and transaction costs. Since data are unavailable for directly testing our hypothesis, in Section IV we present evidence in an effort to refute, or at least cast doubt, on the competing industrial flight hypotheses. We find that the share of U.S. direct investment abroad (DIA) in dirty industries, relative to clean industries, is increasing within several OECD countries with relatively strict environmental regulations, but cooperative legal and regulatory regimes. Additionally, Europe has been increasing their worldwide share of dirty DIA from the U.S. At the same time, European shares of clean DIA are falling, suggesting that the increase in dirty DIA is not simply a response to Europe becoming an increasingly favorable investment location for reasons unrelated to environmental regulations. Though our empirical results are necessarily tentative and our analysis limited by available data, we conclude that the policy debate over harmonizing environmental regulations to discourage industrial flight is, at least, incomplete without considering the regulatory and legal institutions that create, monitor, and enforce those regulations.

Comparative disadvantages?: social regulations and the global economy

The book concludes that in a global economy the burden-some regulations of foreign countries deserve attention, but increasingly so do the burdens that American adversarial legalism imposes on this country and sometimes on others. Ideas and prospects for correcting the problem are discussed throughout.

Should Europe worry about adversarial legalism?

National legal systems are very complicated creatures, resistant to simple generalizations, and in democratic nations, they surely have more shared features than divergent ones. I have argued, however, that compared to other constitutional democracies, policy implementation and dispute resolution in the United States are distinctive in the degree to which those processes are pervaded by adversarial legal contestation.' In response, some observers argue that the rest of the economically developed world is moving inexorably toward convergence with American adversarial legalism, pushed in that direction by more competitive global markets, the weakening of the welfare state, and the growth of transnational European government. That 'convergence' argument raises the broad questions addressed in this essay:

Do Lawyers Cause Adversarial Legalism? A Preliminary Inquiry

Cross-national case studies have indicated that compared to other economically advanced democracies, American methods of policy implementation and dispute resolution are more adversarial and legalistic, shaped by costly court action or the prospect of it. To what extent are lawyers responsible for creating American-style adversarial legalism? This article argues that while adversarial legalism stems primarily from enduring features of American political culture and governmental structure, the legal profession plays a significant independent role in promoting and perpetuating this mode of governance.

Do Lawyers Cause Adversarial Legalism? A Preliminary Inquiry

Do Lawyers Cause Adversarial Legalism? A Preliminary Inquiry

Adversarial Legalism and American Government

Compared to other economically advanced democracies, the United States is uniquely prone to adversarial, legalistic modes of policy formulation and implementation, shaped by the prospect of judicial review. While adversarial legalism facilitates the expression of justice-claims and challenges to official dogma, its costs are often neglected or minimized. A survey of existing research, together with a case study of environmental regulation in the Port of Oakland, indicates the extent to which adversarial legalism causes (or threatens) enormous dispute-resolving costs and procedural delays, which in turn distort policy outcomes. Adversarial legalism, moreover, has increased in recent decades, as Americans have attempted to implement the ambitious, socially transformative policies of activist government through political structures, forms of legislation, and legal procedures that reflect deep suspicion of governmental authority.

The dredging dilemma: Economic development and environmental protection in Oakland Harbor

Abstract Seaport expansion often generates tensions between the national interest in efficient transport and local interests in water quality and habitat preservation. The governing American permitting system, however, establishes an extraordinarily cumbersome, legalistic, and costly method for balancing environmental and economic considerations. A case study of the Port of Oakland illustrates the tendency. For four years, plans to find an environmentally acceptable site for dredged material have been stymied by a sequence of inconclusive regulatory and judicial proceedings. Meanwhile, large container ships can enter and leave Oakland harbor only at high tide, and not fully loaded. Despite the absence of any authoritative determination concerning environmental risks, the port was compelled to accede to progressively more expensive disposal methods. Such “adversarial legalism”; is not unique to the Oakland harbor case, but recurs in other policy spheres. It stems from a governmental structure that fragment...

The Rational Litigant: Settlement Amounts and Verdict Rates in Japan

IN comparative work on Japanese law, "culture" is king. That culture matters is clear enough. Even in the West, essays about relentlessly rational individuals, divorced from their cultural context, do seem to miss the color and richness of human experience.' How much more so in Japan, where some writers routinely describe "[n]on-rational" and "nonlogical tendencies" as among "the main features of the Japanese ways of thinking."2 Applying rational models in the Japanese setting thus justifiably strikes many observers as a perversely myopic exercise. From such a culturalist perspective, the exercise resembles nothing so much as Verdi's dismissal of Mozart as "un quartettista," or even Toscanini's