Lawyers, Legal Culture, and Adversarial Legalism

In the first edition of the groundbreaking book, Adversarial Legalism: The American Way of Law, Robert Kagan explained why America is much more adversarial — likely to rely on legal threats and lawsuits — than other economically advanced countries, with more prescriptive laws, more costly adjudications, and more severe penalties. This updated edition also addresses the rise of the conservative legal movement and anti-statism in the Republican party, which have put in sharp relief the virtues of adversarial legalism in its ability to empower citizens, lawyers, and judges to mount challenges to the arbitrary or unlawful exercise of government authority.

One further contributing cause of American adversarial legalism must be mentioned — the legal profession and the legal culture it generates. Beginning in the 1960s, the advent of a distinctively American brand of activist government — one that seeks total justice through decentralized governmental and economic institutions, legalistic regulation, adversarial legal challenge, and citizen ­initiated lawsuits — vastly increased the demand for lawyers. Within a few decades there were far more of them, housed in larger organizations. There were many more economically and politically important cases of the kind that warrant big investments in creative, aggressive lawyering. In no other country have lawyers been so entrepreneurial in seeking out new kinds of business, so eager to challenge authority, and so quick to propose new liability­ expanding legal theories.

Lawyers themselves have not been the primary cause of the expanding domain of adversarial legalism. Broader political currents and interest groups, as suggested earlier, were the sorcerers that called forth adversarial legalism — thereby generating demands for more legally trained apprentices. These sorcerers’ apprentices, however, soon became richer, better orga­nized, more energetic. While many judges and lawyers strive to dampen ad­versarial legalism, thousands of lawyers who believe in or profit from litigation exploit every opportunity to extend it further and to thwart the sorcerers’ occasional efforts to rein it in. Organized networks of activist lawyers — ranging from the National Prison Project in the Alabama prison reform case, to plaintiffs’ lawyers who focus on particular hazardous products (e.g., asbestos, tobacco, breast implants), and to conservative organizations like the U.S. Chamber of Commerce — systematically push courts to extend the law in the directions each values. The American Trial Lawyers Association lobbies legislatures and mobilizes large campaign contributions to block reforms that would reduce adver­sarial legalism.

Moreover, American lawyers and law professors, in sharp contrast to their counterparts in other democratic nations, have created and defended a body of legal ethics that exalts adversarial legalism. In the United States (far more than elsewhere) lawyers’ codes of ethics endorse zealous advocacy of clients’ causes — short of dishonesty — but without regard to the interests of justice in the particular case or broader societal concerns. American lawyers’ professional culture is unique in permitting and implicitly encouraging them to advance unprecedented legal claims, coach witnesses, and attempt to wear down their opponents through burden­ some pretrial discovery. In the hands of some practitioners — not all, but not merely a few — manipulative and aggressive modes of getting clients and litigating push the limits of adversarial legalism even further.

Perhaps most important, American law professors, judges, and lawyers have elaborated legal theories that actively promote adversarial legalism not as a necessary evil but as a desirable mode of governance. In doing so, they reflect an important strand of American political culture that, as men­tioned earlier, became entrenched in the early nineteenth century: a view of lawyer­ driven litigation and judges as guardians of liberty and democ­racy. The heroic view of the judiciary’s role in government — exemplified by Professor Owen Fiss’s statement quoted in Chapter 2 — has not been un­ contested in the law schools or in the judiciary. But on balance, by the 1960s and thereafter, many prominent American legal scholars and judges have supported a social engineering vision of law and the judicial role — and hence have supported legal rules that facilitate adversarial legalism. Michael Greve observed: “In the United States, there has been a broad consensus for public interest litigation among legal scholars, judges, and the legal establishment in general. In the Federal Republic [of Germany], there is a similarly broad consensus against it. Judges on the Federal Constitu­tional Court and the Federal Administrative Court voiced their opposition to association lawsuits not only on the bench but in legal periodicals and in public.”

Whereas European legal scholars speak of law as a logically coherent set of authoritative principles and rules, American legal scholars often speak of law as a manifestation of the ongoing struggle among groups and classes for political and economic advantage, or as a manipulatable set of tools for achieving better government. In con­trast to Great Britain, Atiyah and Summers observe, “American law schools have been the source of the dominant general theory of law in America . . . ‘instrumentalism’ . . . [which] conceives of law essentially as a pragmatic instrument of social improvement.” Thus the language of the American law school classroom is the language of policy analysis. Law reviews bristle with arguments for new legal rights, not for legal sta­bility. American legal scholars tend to celebrate those American judges who, like the Supreme Court justices in Brown v. Board of Education or Frank Johnson in the Alabama prisons case, feel authorized or even obligated to “do justice” when the other bodies of government have failed to take action against social problems. A cross­-national comparison of styles of statutory interpretation classified the American judiciary as the most freewheeling and creative. The dominant strain in the legal culture of American law teachers supports easy access to courts, along with policy solutions that take the form of judicially enforceable individual rights, government liability for violations of legal rights, and judicially­ enforceable legal controls on official power.

American legal culture is far from monolithic in its endorsement of adversarial legalism. Beginning in the 1980s and accelerating in the 1990s, conservative politicians, foundations, lawyers, and business organizations launched a political movement that attacked and sought to erode the legal attitudes, legal structures, and legal practices that had fostered the expan­sion of adversarial legalism in the 1960s and 1970s. Republican electoral victories led to the appointment of more conservative judges, motivated to chip away at liberal, litigation ­encouraging doctrines forged by the Warren Court. Beginning in the mid­1990s, as discussed more fully in the After­ word, a narrow conservative majority on the U.S. Supreme Court has is­ sued numerous rulings on procedural issues that have made it more difficult for individuals to successfully sue governmental bodies and corporations for violations of civil rights law. Legislatures in many states have enacted restrictions on tort litigation. Congress enacted restrictions on class­ action securities, prison reform, and immigration policy litigation. The Supreme Court also strengthened corporations’ ability to impose form contracts on their em­ployees and customers that substitute industry ­run arbitration plans for rights to seek redress in court. Republican legislators and business lobbyists espousing an intense antigovernment ideology blocked the enactment of regulatory legislation and watered down regulations that did pass, diluting what had been an important stimulant for adversarial legalism in preceding decades.

In sum, adversarial legalism has become more politically contested. On the other hand, the basic structures of adversarial legalism in the United States have not been and are not likely to be dismantled. The basic forces that foster adversarial legalism — popular demands for fair treatment, recom­pense, and protection, combined with mistrust of government and fragmen­tation of political and economic power — remain unchanged and perhaps are unchangeable. Three decades of expanded adversarial legalism imprinted the ideas of American legal culture on the country’s political culture. As po­litical scientist Michael McCann has pointed out, such salient political issues as “discrimination against women, ethnic minorities, gays and lesbians; the incendiary abortion issue; pornography and hate speech; campaign finance regulation; the relationship between religion and public education; gun control; restrictions on police abuse; [and] death penalty policy . . . have been understood and contested in distinctly legal terms de­lineated by the federal courts over time.” In consequence, he adds, “Even those citizens who oppose prevailing court constrictions and legal frames typically [must] pose their own counter­claims in terms of legal traditions authorized by the courts”.

Indeed, as discussed in the Afterword, conservative politicians and busi­ness interests, while denouncing adversarial legalism when deployed to advance or vindicate the values of political liberals, not infrequently ex­panded the use of adversarial legalism to advance or vindicate conservative values — just as they did in the late nineteenth and early twentieth centuries. Moreover, in the first decades of the twenty-­first century, as political party polarization has often led to gridlock in Congress, activists in all political factions, conservative as well as liberal, have even more eagerly turned to the courts to seek legal remedies and legal changes that they have been unable to wrest from legislatures or government agencies. Adversarial le­galism thus remains the American way of law.