The book is a brilliant description about why similar problems abound in many different areas of law (criminal, civil, regulatory, social welfare). Adversarial legalism has its roots in fundamental mistrust of government in USA. This leads to multiple overlapping jurisdictions and the need to turn to the courts to achieve policy gains. Agency officials are hamstrung by so many requirements that they cannot apply their expertise. Instead we have a lawyer/judge centered system. Our system is less elite focused than in Europe/Japan but is also in many ways leads to less egalitarian outcomes and a decisionmaking process that takes years often without a corresponding benefit to justify the delays.
In sector after sector, Kagan demonstrates how the fracturing of authority between branches, agencies, and levels of government leads to policies that no one would describe as "first best" or even "second best" but rather ugly compromises between competing...
Kagan is a political scientist and a lawyer who has no illusions about the shortcomings of the U.S. legal system. Unlike the "tort reform" crowd, he shares many of the political ideals of activist lawyers, but he does not share their delusions about the costs and benefits of the strategies they pursue. The American culture of adversarial legalism may fuel rights consciousness that encourages citizens to stand up for themselves, but also all too often under or over compensates victims, missing the target of consistent and fair compensation. The rhetoric of activist lawyers obscures the degree to which litigation impairs the basic functions of American government, obstructing the pursuit of social justice through government rather than the courts. NB, the author is not the "Of Paradise and Power" conservative Robert Kagan. This Kagan spent his career conducting comparative studies of the effectiveness of different regulatory strategies in increasing workplace safety, protecting the...
This book was excellent to write on for my law school seminar in law and society in global perspective. It gave me many opportunities to select a focus from the many things that Kegan writes. I highly recommend the book.
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