Adversarial Legalism: The American Way of Law

by Robert A. Kagan

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.

Genres: Law, Nonfiction, Politics, History, American, The United States Of America, College

352 pages, Paperback

Published September 1, 2003

Reviews

[Elliott · Rating 5 out of 5]

this is a topic about which I know very little, so take my rating with a grain of salt. but I think I learned a lot. at the end of the book it comments on how little we may know about other systems, and therefore take for granted the way ours operates, which was certainly true of me. really enjoyed the comparative aspect, learning about changes over time, and just learning in general about how things work.

[Jason Hagen · Rating 4 out of 5]

Although the subject is not exciting, it is interesting and important enough to make it worth reading. It did take me a long time simply because it is dense and fairly dry. However, it is not bogged down by highly technical details; instead, the examples have just enough fleshing out to point out the relevance to the discussion. If you are interested in a more detailed understanding of the effects of how the legal process works as a lay person, it's well worth the time.

[Tatiana · Rating 4 out of 5]

4.5 ⭐. I was supposed to read this two weeks ago for class...better late than never. Kagan really did give a thorough, fascinating examination of American adversarial legalism. I want to round up to 5 stars, but the afterword really rubbed me the wrong way, so I rounded down.

[Oli · Rating 4 out of 5]

Adversarial Legalism is a method of policymaking, policy implementation, and dispute resolution by means of lawyer-dominated litigation.
Benefit: flexible and creative judiciaries, checks against official corruption and arbitrariness, protect individual rights, as deterrents to corporate heedlessness. Enhance capitalism and the system of government. (3)
Negative: inefficient, complex, costly, inequality, injustice, unpredictable, time consuming (4)
Two salient characteristics of adversarial legalism:
· formal legal contestation
· litigant activism
Two consequences:
· costliness
· legal uncertainty
The whole book provides examples of adversarial legalism, analyzing it from both its positive impacts and negative impacts on cases and different parties. It specifically discusses the role of adversarial legalism in criminal justice, civil justice, welfare, environmental and economic justice after the general introduction of adversarial legalism.

[Kaitlyn · Rating 4 out of 5]

I read this for my Law and Policy class. The book is starting to become a bit dated but I thought that it was interesting. It gives a good overview if you don't have a lot of background in law.

[Mills College Library]

347.73 K119 2001