Adversarial Legalism

It is no secret that the American legal system is distinct from other developed Western nations in its practices and laws. This variation, termed “adversarial legalism” by Professor Robert Kagan in his book, Adversarial Legalism, has two salient features: formal legal contestation and litigant activism. In civil and criminal law, jury trials and a specific lawyering culture exemplify these traits. Though adversarial legalism responds well to the American desires of justice and protection from harm while simultaneously respecting the societal fear of a government with too much power, it leads to extremely costly litigation and immense legal uncertainty. To reconcile the American view of justice and the undesirable outcomes of formal contestation and litigant activism, the legal system has gone so far as to reform large parts of the system, including bureaucratic regulations and the plea bargaining process. However, as Kagan states, rather than reduce the costliness or uncertainty of the legal process, these procedural changes have merely lead to an increase in litigation and, therefore, an increase of adversarial legalism in criminal and civil law.

One trait of adversarial legalism, formal legal contestation, greatly emphasizes the importance of procedures, rules, and the jury system. Phoebe Ellsworth, in The Social Organization of Law, highlights a number of these procedures and rules. For example, jurors cannot make autonomous inquiries during the trial, unanimity is required of the jurors, and jurors cannot look at how previous juries may have decided similar cases because juries do not leave written records. There are even rules in the evidence collecting system, like those defining the legal limits of search and seizure, tha...

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...nts that they feel they often have no choice but to plea guilty and accept the bargain. Prosecutors can exploit the consequences produced by adversarial legalism in a way that allows them to process a high volume of cases and obtain a large number of guilty pleas. The systematic changes to civil and criminal law in an attempt to avoid the negative outcomes of adversarial legalism only makes the system less useful for citizens.

While adversarial legalism satisfies the American want for complete protection by a purposefully fragmented government, the effects on the individual are highly undesirable. The cost and unreliability associated with litigant activism and formal contestation have the strong possibility of discouraging citizens from pushing forward in dispute and criminal claims. Unfortunately, these are the consequences of adversarial legalism in America.