Adversarial Legalism

by Kagan, Robert Allen

• ISBN13: 9780674006218
• ISBN10: 0674006216
• Format: Hardcover
• Copyright: 2001-10-01
• Publisher: Harvard Univ Pr

Summary

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	vi
I Adversarial Legalism: Contours, Consequences, Causes
The Concept of Adversarial Legalism	3	(15)
The Two Faces of Adversarial Legalism	18	(16)
The Political Construction of Adversarial Legalism	34	(27)
II Criminal Justice
Adversarial Legalism and American Criminal Justice	61	(21)
Deciding Criminal Cases	82	(17)
III Civil Justice
Adversarial Legalism and Civil Justice	99	(27)
The Tort Law System	126	(33)
IV Public Law: Social Justice and Regulation
Adversarial Legalism and the Welfare State	159	(22)
Adversarial Legalism and Regulatory Style	181	(26)
Economic Development, Environmental Protection, and Adversarial Legalism	207	(22)
Conclusion: Can the United States Tame Adversarial Legalism?	229	(26)
Notes	255	(30)
References	285	(46)
Index	331