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Adversarial legalism and American government

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  • Robert A. Kagan

    (Professor of Political Science and Law, University of California, Berkeley)

Abstract

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.

Suggested Citation

  • Robert A. Kagan, 1991. "Adversarial legalism and American government," Journal of Policy Analysis and Management, John Wiley & Sons, Ltd., vol. 10(3), pages 369-406.
    • Handle: RePEc:wly:jpamgt:v:10:y:1991:i:3:p:369-406
    DOI: 10.2307/3325322
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    Cited by:

    1. Scott L. Greer & Benjamin Trump, 2019. "Regulation and regime: the comparative politics of adaptive regulation in synthetic biology," Policy Sciences, Springer;Society of Policy Sciences, vol. 52(4), pages 505-524, December.
    2. John W. Cioffi, 2009. "Adversarialism versus legalism: Juridification and litigation in corporate governance reform," Regulation & Governance, John Wiley & Sons, vol. 3(3), pages 235-258, September.
    3. Lampach, Nicolas & Wijtvliet, Wessel & Dyevre, Arthur, 2020. "Merchant hubs and spatial disparities in the private enforcement of international trade regimes," International Review of Law and Economics, Elsevier, vol. 64(C).
    4. Aseem Prakash & Kelly Kollman, 2004. "Policy modes, firms and the natural environment," Business Strategy and the Environment, Wiley Blackwell, vol. 13(2), pages 107-128, March.
    5. Edward Alan Miller, 2006. "Federal Oversight, State Policy Making, and the Courts: An Empirical Analysis of Nursing Facility Litigation Under the Boren Amendment," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 3(1), pages 145-173, March.
    6. Michael Howlett, 2009. "Governance modes, policy regimes and operational plans: A multi-level nested model of policy instrument choice and policy design," Policy Sciences, Springer;Society of Policy Sciences, vol. 42(1), pages 73-89, February.
    7. Trump, Benjamin D., 2017. "Synthetic biology regulation and governance: Lessons from TAPIC for the United States, European Union, and Singapore," Health Policy, Elsevier, vol. 121(11), pages 1139-1146.
    8. Anderson, C. Leigh & Kagan, Robert A., 2000. "Adversarial legalism and transaction costs:: The industrial-flight hypothesis revisited," International Review of Law and Economics, Elsevier, vol. 20(1), pages 1-19, March.
    9. Lily Hsueh & Aseem Prakash, 2012. "Incentivizing self‐regulation: Federal vs. state‐level voluntary programs in US climate change policies," Regulation & Governance, John Wiley & Sons, vol. 6(4), pages 445-473, December.

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