Adversarial Legalism

Adversarial versus Bureaucratic Legalism

In Kagan's typology, adversarial legalism is contrasted with bureaucratic legalism—a method of policy implementation and dispute resolution exemplified most clearly by Western European countries with a civil law tradition. In bureaucratic legalism, government agencies and courts are organized hierarchically. The emphasis is on uniform implementation of legal rules, centralized recruitment and supervision of politically neutral legal decisionmakers (judges, prosecutors, police officers, regulatory officials), and judge-dominated adjudicative processes. The influence of disputing parties and their legal advocates is muted. Judges are regarded as neutral “law-appliers,” rather than legal policymakers.

Adversarial legalism, in contrast, is a style of policy implementation and dispute resolution in which litigation (or the threat of it) is common, as is judicial policy making. In litigation and adjudication, disputing parties and their lawyers play influential parts. Compared with bureaucratic legalism, authority is more fragmented. Those dissatisfied by governmental decisions can challenge them more readily in court. Whereas bureaucratic legalism emphasizes legal uniformity, adversarial legalism encourages judicial responsiveness and instrumental problem solving. American judges are popularly elected or selected through partisan political processes. Hence, compared with Western Europe, court decisions in the United States more often depend on whether a judge is politically liberal or conservative. Court outcomes also are affected by variability in the efforts and abilities of the disputing parties' lawyers.

The distinction between adversarial and bureaucratic legalism applies not merely to case-by-case decision making but also to modes of policy implementation. Thus, American lawyers and courts play major roles in making and enforcing legal norms concerning the practices of locally selected police and prosecutors—in contrast to the more hierarchical systems of Western Europe and Japan, where supervision is the responsibility of national or provincial police and prosecutorial bureaucracies.

Adversarial legalism and bureaucratic legalism are ideal types. Contemporary democracies use some mixture of both. Politically driven litigation sometimes occurs in countries primarily committed to bureaucratic legalism. In the United States, decision making in some government agencies reflects a mixture of bureaucratic legalism, adversarial legalism, and professional judgment. Because adversarial litigation is especially costly and fearsome, disputing parties in the United States negotiate settlements of most cases, both civil and criminal, before trial. Thus, adversarial legalism is not omnipresent in the United States—although it is more prevalent there than in other common law countries, including those (such as Australia, Canada, and the United Kingdom) that rely on the adversarial system of adjudication.

Causes

In the United States, adversarial legalism has grown from a political culture permeated by individualism, populism, and distrust of concentrated political and economic power. These attitudes have found [Page 11]expression in the constitutional fragmentation of governing authority (federalism, separation of powers, local finance of municipal government), judicially enforceable constitutional rights, political selection of judges and prosecutors, and resistance to the growth of central government. In economic structure, the result has been a preference for private provision of many basic services and for open, competitive markets—which has fostered private litigation and legalistic regulation, rather than hierarchical control, to counter unacceptable business behavior. Beginning in the 1960s, adversarial legalism further increased because of the combination of (a) political demands for social and environmental justice, and (b) politically divided government and partisan mistrust of how new governmental regulatory powers would be deployed. To ensure that new welfare, antidiscrimination, environmental, and due process standards would be implemented by politically influenced administrative agencies, local governments, schools, and police departments, the new laws empowered businesses and advocacy groups to hold those bodies accountable through litigation.

...