Preface I Adversarial Legalism: Contours, Consequences, Causes 1. The Concept of Adversarial Legalism 2. The Two Faces of Adversarial Legalism 3. The Political Construction of Adversarial Legalism II Criminal Justice 4. Adversarial Legalism and American Criminal Justice 5. Deciding Criminal Cases III Civil Justice 6. Adversarial Legalism and Civil Justice 7. The Tort Law System IV Public Law: Social Justice and Regulation 8. Adversarial Legalism and the Welfare State 9. Adversarial Legalism and Regulatory Style 10. Economic Development, Environmental Protection, and Adversarial Legalism Conclusion: Can the United States Tame Adversarial Legalism? Notes References Index
This is a wonderful piece of work, richly detailed and beautifully written. It is the best, sanest, and most comprehensive evaluation and critique of the American way of law that I have seen. Every serious scholar concerned with justice and efficiency, and every policymaker who is serious about improving the American legal order should read this trenchant and exciting book. -- Lawrence Friedman, Stanford University
Robert A. Kagan is Professor of Law and Political Science at the University of California, Berkeley.
[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.
*Law and Society Review*
Kagan offers an important and insightful study of American legal
culture. Its chief thesis is that the American way of law is best
described as ‘adversarial legalism,’ or the process by which policy
making, implementation, and dispute resolution are dominated by
lawyers and litigation. Although the thesis in this form is hardly
original, Kagan’s treatment of it, ranging across a wide variety of
scholarly disciplines, is both comprehensive and critical. A
significant advantage of Kagan’s treatment is his commitment to a
genuinely comparative analysis of American legalism, though one
might argue that his assessment of American legal exceptionalism is
overstated. Whatever the merits of Kagan’s assessment, however, it
is made possible by his careful attention to comparative materials
and thus shows the promise of an authentic comparative legal
methodology. In sum, this is an important, indeed an elegant, book.
Highly recommended.
*Choice*
This is a wonderful piece of work, richly detailed and beautifully
written. It is the best, sanest, and most comprehensive evaluation
and critique of the American way of law that I have seen. Every
serious scholar concerned with justice and efficiency, and every
policymaker who is serious about improving the American legal order
should read this trenchant and exciting book.
*Lawrence Friedman, Stanford University*
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