Adversarial Legalism

[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.
-- Charles R. Epp 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.
-- J. E. Finn 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