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Adversarial Legalism: The American Way of Law

"Adversarial legalism" is Professor Kagan's term for "the rambunctious, peculiarly American style of law and legal decisionmaking" exhibited recently in the disputed 2000 presidential election. Not only is such adversarial legalism prominent in America, Kagan argues, but it is also prevalent, "affecting almost every sphere of governmental and economic activity." It is rooted in the American distrust´┐Żand resultant decentralization´┐Żof governmental power. The author backs up his argument with comparative law studies, which examine the American adversarial system against other more impersonal systems of regulation and adjudication. The American adversarial system, Kagan concludes, is more inefficient than others, imposing higher costs and resulting in more uncertainty, but it is unclear whether it can be reformed.

Robert A. Kagan, Professor, University of California at Berkeley (Harvard University Press, 2003)



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