The Same Only Different: Reflections on Robert Kagan’s Adversarial Legalism


Publish Date:
November 1, 2020
Publication Title:
Law and Social Inquiry
Journal Article Volume 45 Issue 4 Page(s) 1170 - 1184
  • Lawrence M. Friedman, The Same Only Different: Reflections on Robert Kagan's Adversarial Legalism, 45 Law and Social Inquiry 1170 (2020).


Robert A. Kagan’s influential book, first published at the beginning of the twenty-first century, is now brought up to date with a second edition. “Adversarial legalism,” in Kagan’s view, distinguishes law in the United States from the law of other developed countries in many ways, for example, heavy use of policymaking through litigation and punitive regulation, as opposed to bureaucratic and conciliatory techniques. He suggests that this situation is likely to continue. This essay, however, looks at the same phenomena from the standpoint of similarities rather than differences. It suggests that powerful economic and cultural forces, common to the modern world of developed countries, tend to push the legal systems of these countries in parallel directions. Convergence, rather than divergence, is therefore the trend in the legal systems of the Western world; and this trend is likely to continue in the future.

In Adversarial Legalism (2001), Robert A. Kagan explored in detail the “American way of law,” a distinctive cluster of traits that he called “adversarial legalism.” This “American way” stands in sharp contrast to the law-ways of other developed countries. Now a second edition (2019) brings the story up to date and adds references to new developments. Like the first edition, it is a brilliant and thoughtful account of the way the legal system of the United States works, based on a rich and varied storehouse of research. Some is Kagan’s own research; some is research that his students carried out or that was inspired by Kagan’s work, mostly (but not entirely) on the subject of business regulation.

Kagan defines “adversarial legalism” as “policymaking, policy implementation, and dispute resolution by means of party-and-lawyer-dominated legal contestation.” In other developed countries, there is a system of “bureaucratic administration, discretionary judgment by experts or political authorities, information negotiation or mediation and the judge-dominated style of litigation.” To be sure, the United States uses all of these other ways of making and enforcing policy, but they operate “in the shadow of the legal structures of adversarial legalism” (ibid., 3).

The key phrase may be “legal contestation.” More than other countries, policy in the United States, to an astonishing degree, flows out of lawsuits. To be sure, Congress, the executive, and state and local governments make policy, and administrative agencies enforce and implement these policies. But Americans do make striking use of lawyers and lawsuits, in a way that other systems do not—systems in the rich European countries, Japan, South Korea, and the rest of the developed world. In addition, law in practice in the United States is drenched with an adversarial ethos. Business regulation is more rule-bound, more punitive, less willing to cooperate with businesses, less inclined to work with them, to mediate, and conciliate. Also, government in the United States is extremely fragmented. The legal system hardly seems like a system at all; rather, it is like the old Holy Roman Empire, a cluster of tiny and not-so-tiny little statelets, run by kings, dukes, bishops, and electors.

These then are three traits of law in the United States, traits that seem out of step with the rest of the developed world: first, the bloated role of litigation; second, the adversarial style of regulation; and third, the fragmentation of government. The result is a system that can be or can seem to be unusually slow, messy, and inefficient—though arguably at times more democratic than the systems in other countries.

A few words about these three traits. The first seems undeniable: the United States legal system makes striking use of lawyers, lawyering, and lawsuits, beyond what is typical in modern societies. At times, lawsuits can reach the depths of Dickens’s Bleak House. Litigation seems both ubiquitous and iniquitous; a shiny tool that interest groups of all sorts gleefully and obsessively indulge in. Civil rights suits. Death penalty cases. Complaints against business regulation. Objections to government decisions of all sorts. Any plan to build a highway, an airport, or a pipeline, or to dredge a harbor or drill for oil, any scheme that impinges or might impinge on some national park or forest, is bound to attract lawsuits. Groups, individuals, nongovernmental organizations, municipal authorities—in fact just about anybody with a gripe or complaint might go to court. This does not mean that the litigation rate in the United States is higher than in other countries, or that there is a “litigation explosion” in the United States. That may or may not be the case. Litigation “rates” are hard to measure, and the figures can be misleading. It is the type of litigation that matters, more so than the actual number of cases.

As Sean Farhang has pointed out, in the United States, the regulatory state itself, to a great degree, “takes the form of radically decentralized intervention by an army of litigants and lawyers” (Farhang 2010, 214). This habit goes far back. The Sherman Act (1890) made monopolies and contracts in restraint of trade criminal offenses; at the same time, the act gave private citizens and companies the right to bring their own lawsuits against companies that acted in violation of the law.

Law in the United States also indulges in an unusual amount of judicial review. “Formal legal contestation” and “litigant activism” is rampant (ibid., 10). Judicial review, as is well known, goes all the way back to the early nineteenth century; every law student is aware of Marbury v. Madison (1806, see also Nelson 2000). The rest of the world has done a great deal of catching up, in the period since World War II; but it is still the case that in the United States (whatever the situation elsewhere), any major piece of legislation has to run the gamut of judicial review. And, of course, there is not just a federal constitution, there are fifty state constitutions to reckon with as well.

The second trait is the adversarial nature of regulation. Take, for example, one striking instance, which Kagan cites in detail, the regulation of industrial waste management. In Regulatory Encounters: Multinational Corporations and American Adversarial Legalism, a book of essays edited by Kagan and Lee Axelrad, one chapter is a detailed study by Kazumasu Aoki and John Cioffi: “Poles Apart: Industrial Waste Management Regulation and Enforcement in the United States and Japan” (Aoki and Cioffi 2000, 33). Aoki and Cioffi exploit a kind of natural experiment. A “multinational corporation specializing in the manufacture of precision metal parts,” which the authors call PREMCO, has plants both in Japan and the United States, and in both countries, there are regulations that apply to hazardous waste products. But the contrast between the two systems is stark. The Japanese mode of regulation is “cooperative and nonadversarial.” The American mode is legalistic, and leans heavily toward sanctions; it is “punitive” in nature. After a fine was imposed on the American firm, there were six months of negotiations “as the opposing attorneys, hobbled by mutual mistrust and antagonism, haggled over changes in language,” language that, apparently, did not make much real difference. This was costly, of course. In Japan, by way of contrast, it is rare to resort to “formal enforcement mechanisms,” and sanctions have never been actually imposed. The Japanese system is informal—but also quite effective. Japanese managers “welcome regulators into the plant” (do they really?), while the American plant “resents and dreads the arrival of anonymous and legalistic regulators.”

The third trait, the fragmentation of government, is fairly obvious. To begin with, there is the federal system. Within each state, there are counties, municipalities, school boards, sewer districts; cities are surrounded by independent suburbs; everywhere one looks, there are little fiefdoms that can frustrate or delay any attempt to centralize control. In many ways and in many areas, there is no real central authority anywhere. The president may have his finger on the nuclear button, but there is no button to give him, or anybody else in Washington, power to control the school board of Wichita, Kansas, or to reform the building code of Fresno, California. There are other federal systems (Germany, Canada, Australia, and Switzerland come to mind), but perhaps none quite so fragmented. In the sad experience of the United States, the battle against the coronavirus—of course there are other factors involved—shows what a muddle fragmentation makes when the country is faced with a crisis.

In this essay, I want to examine Kagan’s thesis, not so much by way of critique (I think he is basically right), but rather to look at it, and the underlying facts, from a slightly different standpoint. I admit the reality of adversarial legalism, and that it does seem to set America apart from other countries. But in general, Kagan’s work is about differences: between the United States, its government, its laws, its legal culture; and the government, laws, and legal culture of other developed democratic countries. Differences in welfare services, in business regulation, in tort law, in criminal law, and in other rooms in the house of law. Kagan and his students have studied business regulation and other topics in the Netherlands, Japan, Germany, and other countries. In these comparative studies, the United States usually (though not always) comes out looking worse. The work then, explicitly or implicitly, is critical of adversarial legalism. The system is inefficient, disruptive, and sometimes maddeningly slow. Yet, as I said, it is arguably at times more democratic than systems in other countries.

My aim is not to argue with the central point. Kagan has explored American legalism sharply, even ruthlessly. Adversarial legalism is deeply entrenched, “woven into the fabric of American life and politics” (2019, 43). Almost two centuries ago, de Tocqueville famously observed that political issues in the United States tended to turn into legal issues. This is, if anything, even truer today.

But I want to ask two basic questions. The first asks, what if we looked for similarities, rather than differences? What if we asked, in what ways are systems in modern, developed countries alike? What do the “law ways” of all these countries have in common; and how important are these commonalities? The second question asks: how permanent is this gulf between the United States and the rest of what we used to call the civilized world (it seems much less civilized these days)? Is the gap likely to last? Is it growing, standing still, or declining? As a popular saying (attributed to various people) has it, it’s tough to make predictions, especially about the future. Tough indeed; but it is tempting to try.