Search Results for "adversarial-legalism-the-american-way-of-law"

Adversarial Legalism

Adversarial Legalism

The American Way of Law

  • Author: Robert A. KAGAN,Robert A Kagan
  • Publisher: Harvard University Press
  • ISBN: 9780674039278
  • Category: Law
  • Page: 352
  • View: 9126
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American methods of policy implementation and dispute resolution are more adversarial and legalistic when compared with the systems of other economically advanced countries. Americans more often rely on legal threats and lawsuits. American laws are generally more complicated and prescriptive, adjudication more costly, and penalties more severe. In a thoughtful and cogently argued book, Robert Kagan examines the origins and consequences of this system of "adversarial legalism." Kagan describes the roots of adversarial legalism and the deep connections it has with American political institutions and values. He investigates its social costs as well as the extent to which lawyers perpetuate it. Ranging widely across many legal fields, including criminal law, environmental regulations, tort law, and social insurance programs, he provides comparisons with the legal and regulatory systems of western Europe, Canada, and Japan that point to possible alternatives to the American methods. Kagan notes that while adversarial legalism has many virtues, its costs and unpredictability often alienate citizens from the law and frustrate the quest for justice. This insightful study deepens our understanding of law and its relationship to politics in America and raises valuable questions about the future of the American legal system.

Eurolegalism

Eurolegalism

  • Author: R. Daniel Kelemen
  • Publisher: Harvard University Press
  • ISBN: 0674061055
  • Category: Political Science
  • Page: 378
  • View: 2770
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Despite western Europe’s traditional disdain for the United States’ “adversarial legalism,” the European Union is shifting toward a similar approach to the law, according to Daniel Kelemen. Coining the term “eurolegalism” to describe the hybrid, he shows how the political and organizational realities of the EU make this shift inevitable.

Law's Allure

Law's Allure

How Law Shapes, Constrains, Saves, and Kills Politics

  • Author: Gordon Silverstein
  • Publisher: Cambridge University Press
  • ISBN: 0521896479
  • Category: Law
  • Page: 316
  • View: 734
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Law's Allure explains how, when, and why America's reliance on legal rules and judicial decisions shapes, constrains, saves, and sometimes even kills politics.

Dynamics of Regulatory Change

Dynamics of Regulatory Change

How Globalization Affects National Regulatory Policies

  • Author: David Vogel,Robert A. Kagan
  • Publisher: Univ of California Press
  • ISBN: 9780520245358
  • Category: Business & Economics
  • Page: 370
  • View: 4160
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Critics of globalization claim that economic liberalization leads to a lowering of regulatory standards. As capital and corporations move more freely across national boundaries, a race to the bottom results as governments are forced to weaken labor and environmental standards to retain current contracts or attract new business. The essays in this volume argue that, on the contrary, under certain circumstances global economic integration can actually lead to the strengthening of consumer and environmental standards. This volume extends the argument of David Vogel's book Trading Up, which discussed environmental standards, by focusing on the impact of globalization on labor rights, women's rights and capital market regulations. Critics of globalization claim that economic liberalization leads to a lowering of regulatory standards. As capital and corporations move more freely across national boundaries, a race to the bottom results as governments are forced to weaken labor and environmental standards to retain current contracts or attract new business. The essays in this volume argue that, on the contrary, under certain circumstances global economic integration can actually lead to the strengthening of consumer and environmental standards. This volume extends the argument of David Vogel's book Trading Up, which discussed environmental standards, by focusing on the impact of globalization on labor rights, women's rights and capital market regulations.

Total Justice

Total Justice

  • Author: Lawrence M. Friedman
  • Publisher: Russell Sage Foundation
  • ISBN: 161044230X
  • Category: Social Science
  • Page: 176
  • View: 9576
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It is a widely held belief today that there are too many lawsuits, too many lawyers, too much law. As readers of this engaging and provocative essay will discover, the evidence for a "litigation explosion" is actually quite ambiguous. But the American legal profession has become extremely large, and it seems clear that the scope and reach of legal process have indeed increased greatly. How can we best understand these changes? Lawrence Friedman focuses on transformations in American legal culture—that is, people's beliefs and expectations with regard to law. In the early nineteenth century, people were accustomed to facing sudden disasters (disease, accidents, joblessness) without the protection of social and private insurance. The uncertainty of life and the unavailability of compensation for loss were mirrored in a culture of low legal expectations. Medical, technical, and social developments during our own century have created a very different set of expectations about life, again reflected in our legal culture. Friedman argues that we are moving toward a general expectation of total justice, of recompense for all injuries and losses that are not the victim's fault. And the expansion of legal rights and protections in turn creates fresh expectations, a cycle of demand and response. This timely and important book articulates clearly, and in nontechnical language, the recent changes that many have sensed in the American legal system but that few have discussed in so powerful and sensible a way. Total Justice is the third of five special volumes commissioned by the Russell Sage Foundation to mark its seventy-fifth anniversary.

Varieties of Legal Order

Varieties of Legal Order

The Politics of Adversarial and Bureaucratic Legalism

  • Author: Thomas F. Burke,Jeb Barnes
  • Publisher: Routledge
  • ISBN: 1136211195
  • Category: Political Science
  • Page: 210
  • View: 8539
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Across the globe, law in all its variety is becoming more central to politics, public policy, and everyday life. For over four decades, Robert A. Kagan has been a leading scholar of the causes and consequences of the march of law that is characteristic of late 20th and early 21st century governance. In this volume, top sociolegal scholars use Kagan’s concepts and methods to examine the politics of litigation and regulation, both in the United States and around the world. Through studies of civil rights law, tobacco politics, “Eurolegalism,” Russian auto accidents, Australian coal mines, and California prisons, these scholars probe the politics of different forms of law, and the complex path by which “law on the books” shapes social life. Like Kagan’s scholarship, Varieties of Legal Order moves beyond stale debates about litigiousness and overregulation, and invites us to think more imaginatively about how the rise of law and legalism will shape politics and social life in the 21st century.

Up in Smoke

Up in Smoke

From Legislation to Litigation in Tobacco Politics

  • Author: Martha A. Derthick
  • Publisher: SAGE
  • ISBN: 1483304647
  • Category: Political Science
  • Page: 280
  • View: 1449
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Now, with a brand new 3rd edition, the book returns to "ordinary politics" and the passage of the Family Smoking Prevention and Tobacco Control Act which gave the FDA broad authority to regulate both the manufacture and marketing of tobacco products. Derthick shows our political institutions working as they should, even if slowly, with partisanship and interest group activity playing their part in putting restraints on cigarette smoking.

The Warping of Government Work

The Warping of Government Work

  • Author: John D. Donahue
  • Publisher: Harvard University Press
  • ISBN: 9780674027886
  • Category: Political Science
  • Page: 213
  • View: 5123
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The divergent paths of public and private employment have intensified a long-standing pattern: elite workers spurn public jobs, while less skilled workers cling to government work as a refuge from a harsh private economy. "The Warping of Government Work" documents government s isolation from the rest of the American economy and arrays the stark choices we confront for narrowing, or accommodating, the divide between public and private work."

Lawyers, Lawsuits, and Legal Rights

Lawyers, Lawsuits, and Legal Rights

The Battle Over Litigation in American Society

  • Author: Thomas Frederick Burke
  • Publisher: Univ of California Press
  • ISBN: 9780520227279
  • Category: Law
  • Page: 267
  • View: 2056
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The struggle over litigation in American society is explored in this groundbreaking study of the American legal system that reveals why the United States has become such a litigious society. (Politics & Government)

Tales from the Sausage Factory

Tales from the Sausage Factory

Making Laws in New York State

  • Author: Daniel L. Feldman,Gerald Benjamin
  • Publisher: SUNY Press
  • ISBN: 1438434030
  • Category: Biography & Autobiography
  • Page: 391
  • View: 9738
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A former state legislator and a political scientist team up to show how New York's legislature was once the nation's model professional legislature, and how it might recover from its present dysfunction.

Inventing American Exceptionalism

Inventing American Exceptionalism

The Origins of American Adversarial Legal Culture, 1800-1877

  • Author: Amalia D. Kessler
  • Publisher: Yale University Press
  • ISBN: 0300198078
  • Category:
  • Page: 464
  • View: 6446
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A highly engaging account of the developments--not only legal, but also socioeconomic, political, and cultural--that gave rise to Americans' distinctively lawyer-driven legal culture When Americans imagine their legal system, it is the adversarial trial--dominated by dueling larger-than-life lawyers undertaking grand public performances--that first comes to mind. But as award-winning author Amalia Kessler reveals in this engrossing history, it was only in the turbulent decades before the Civil War that adversarialism became a defining American practice and ideology, displacing alternative, more judge-driven approaches to procedure. By drawing on a broad range of methods and sources--and by recovering neglected influences (including from Europe)--the author shows how the emergence of the American adversarial legal culture was a product not only of developments internal to law, but also of wider socioeconomic, political, and cultural debates over whether and how to undertake market regulation and pursue racial equality. As a result, adversarialism came to play a key role in defining American legal institutions and practices, as well as national identity.

Dust-Up

Dust-Up

Asbestos Litigation and the Failure of Commonsense Policy Reform

  • Author: Jeb Barnes
  • Publisher: Georgetown University Press
  • ISBN: 1589017862
  • Category: Political Science
  • Page: 152
  • View: 1820
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In an era of polarization, narrow party majorities, and increasing use of supermajority requirements in the Senate, policy entrepreneurs must find ways to reach across the aisle and build bipartisan coalitions in Congress. One such coalition-building strategy is the “politics of efficiency,” or reform that is aimed at eliminating waste from existing policies and programs. After all, reducing inefficiency promises to reduce costs without cutting benefits, which should appeal to members of both political parties, especially given tight budgetary constraints in Washington. Dust-Up explores the most recent congressional efforts to reform asbestos litigation—a case in which the politics of efficiency played a central role and seemed likely to prevail. Yet, these efforts failed to produce a winning coalition, even though reform could have saved billions of dollars and provided quicker compensation to victims of asbestos-related diseases. Why? The answers, as Jeb Barnes deftly illustrates, defy conventional wisdom and force us to rethink the political effects of litigation and the dynamics of institutional change in our fragmented policymaking system. Set squarely at the intersection of law, politics, and public policy, Dust-Up provides the first in-depth analysis of the political obstacles to Congress in replacing a form of litigation that nearly everyone—Supreme Court justices, members of Congress, presidents, and experts—agrees is woefully inefficient and unfair to both victims and businesses. This concise and accessible case study includes a glossary of terms and study questions, making it a perfect fit for courses in law and public policy, congressional politics, and public health.

Making Policy, Making Law

Making Policy, Making Law

An Interbranch Perspective

  • Author: Mark C. Miller
  • Publisher: Georgetown University Press
  • ISBN: 1589010256
  • Category: Political Science
  • Page: 244
  • View: 4362
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The functioning of the U.S. government is a bit messier than Americans would like to think. The general understanding of policymaking has Congress making the laws, executive agencies implementing them, and the courts applying the laws as written—as long as those laws are constitutional. Making Policy, Making Law fundamentally challenges this conventional wisdom, arguing that no dominant institution—or even a roughly consistent pattern of relationships—exists among the various players in the federal policymaking process. Instead, at different times and under various conditions, all branches play roles not only in making public policy, but in enforcing and legitimizing it as well. This is the first text that looks in depth at this complex interplay of all three branches. The common thread among these diverse patterns is an ongoing dialogue among roughly coequal actors in various branches and levels of government. Those interactions are driven by processes of conflict and persuasion distinctive to specific policy arenas as well as by the ideas, institutional realities, and interests of specific policy communities. Although complex, this fresh examination does not render the policymaking process incomprehensible; rather, it encourages scholars to look beyond the narrow study of individual institutions and reach across disciplinary boundaries to discover recurring patterns of interbranch dialogue that define (and refine) contemporary American policy. Making Policy, Making Law provides a combination of contemporary policy analysis, an interbranch perspective, and diverse methodological approaches that speak to a surprisingly overlooked gap in the literature dealing with the role of the courts in the American policymaking process. It will undoubtedly have significant impact on scholarship about national lawmaking, national politics, and constitutional law. For scholars and students in government and law—as well as for concerned citizenry—this book unravels the complicated interplay of governmental agencies and provides a heretofore in-depth look at how the U.S. government functions in reality.

Eligible for Execution

Eligible for Execution

The Story of the Daryl Atkins Case

  • Author: Thomas G. Walker
  • Publisher: SAGE
  • ISBN: 1483304531
  • Category: Political Science
  • Page: 320
  • View: 930
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This riveting and enlightening narrative unfolds on the night of August 16, 1996, with the brutal and senseless murder of Eric Nesbitt, a young man stationed at Langley Air Force Base, at the hands of 18-year-old Daryl Atkins. Over the course of more than a decade, Atkins’s case has bounced between the lowest and the highest levels of the judicial system. Found guilty and then sentenced to death in 1998 for Nesbitt’s murder, the Atkins case was then taken up in 2002 by the U.S. Supreme Court. The issue before the justices: given Daryl Atkins’s mental retardation, would his execution constitute cruel and unusual punishment, in violation of the Eighth Amendment? A 6–3 vote said yes. Daryl Atkins’s situation was far from being resolved though. Prosecutors claimed that Atkins failed to meet the statutory definition of mental retardation and reinstituted procedures to carry out his death sentence. Back in circuit court, the jury returned its verdict: Daryl Atkins was not retarded. Atkins’s attorneys promptly filed a notice of appeal, and the case continues today. Drawing on interviews with key participants; direct observation of the hearings; and close examination of court documents, transcripts, and press accounts, Thomas G. Walker provides readers with a rare view of the entire judicial process. Never losing sight of the stakes in a death penalty case, he explains each step in Atkins’s legal journey from the interactions of local law enforcement, to the decision-making process of the state prosecutor, to the Supreme Court’s ruling, and beyond. Walker sheds light on how legal institutions and procedures work in real life—and how they are all interrelated—to help students better understand constitutional issues, the courts, and the criminal justice system. Throughout, Walker also addresses how disability, race, and other key demographic and social issues affect the case and society’s views on the death penalty.

Below the Radar

Below the Radar

How Silence Can Save Civil Rights

  • Author: Alison L. Gash
  • Publisher: Oxford University Press
  • ISBN: 0190266309
  • Category: Political Science
  • Page: 280
  • View: 5034
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In 1993, the nation exploded into anti-same sex marriage fervor when the Hawaii Supreme Court issued its decision to support marriage equality for gay and lesbian couples. Opponents feared that all children, but especially those raised by lesbian or gay couples, would be harmed by the possibility of same-sex marriage, and warned of the consequences for society at large. Congress swiftly enacted the Defense of Marriage Act, defining marriage as between a man and a woman, and many states followed suit. Almost a decade before the Hawaii court issued its decision, however, several courts in multiple states had granted gay and lesbian couples co-parenting status, permitting each individual in the couple to be legally recognized as joint parents over their children. By 2006, advocates in half the states had secured court decisions supporting gay and lesbian co-parenting, and incurred far fewer public reprisals than on the marriage front. What accounts for the stark difference in reactions to two contemporaneous same-sex family policy fights? In Below the Radar, Alison Gash argues that advocacy visibility has played a significant role in determining whether advocacy efforts become mired in conflict or bypass hostile backlash politics. Same-sex parenting advocates are not alone in crafting low-visibility advocacy strategies to ward off opposition efforts. Those who operate, reside in, and advocate for group homes serving individuals with disabilities have also used below-the-radar strategies to diminish the damage cause by NIMBY ("not in my back yard") responses to their requests to move into single-family neighborhoods. Property owners have resorted to slander, subterfuge, or even arson to discourage group homes from locating in their neighborhoods, and for some advocates, secrecy provides the best elixir. Not every fight for civil rights grabs headlines, but sometimes, this is by design. Gash's groundbreaking analyses of these strategies provide a glimpse of the prophylactic and palliative potential of low-visibility advocacy.

Social Organization of Law

Social Organization of Law

Introductory Readings

  • Author: Austin Sarat
  • Publisher: N.A
  • ISBN: N.A
  • Category: Law
  • Page: 596
  • View: 436
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"Austin sarat's the social organization of law: introductory readings begins with a simple premise-law seeks to work in the world, to order, change, and give meaning to society-and describes legal processes as socially organized. This connects legal studies to the study of society in two different senses."

Process and Procedure in EU Administration

Process and Procedure in EU Administration

  • Author: Carol Harlow,Richard Rawlings
  • Publisher: Bloomsbury Publishing
  • ISBN: 1782255753
  • Category: Law
  • Page: 309
  • View: 3938
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This book is about the administrative procedures of the European Union, which we see as the 'super glue' holding in place the sprawling structures of the EU governance system. The early chapters deal with the structures expansively defined, the diverse functions of administrative procedures in the EU and the values that underpin them, concentrating on the respective contributions of the legislature and administration. A separate chapter deals with the important procedural function of rights protection through the two Community Courts and the contribution of the European Ombudsman. We then turn to 'horizontal' or general procedures, dealing with executive law-making, transparency and the regulation of government contracting. A study of Commission enforcement procedure ends the section. 'Vertical' or sector-specific studies in significant areas of EU administration follow, including competition policy, cohesion policy (structural funds) and financial services regulation. Separate chapters deal with policing cooperation through Europol and with the interplay of international and EU institutions in the fields of environmental procedure and human rights. The final chapter contains the authors' reflections on current proposals for codification but ends with a general evaluation of the role and contribution of administrative procedure in the construction of the EU.

The Futility of Law and Development

The Futility of Law and Development

China and the Dangers of Exporting American Law

  • Author: Jedidiah J. Kroncke
  • Publisher: Oxford University Press
  • ISBN: 0190233524
  • Category: China
  • Page: 376
  • View: 7358
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For all the attention paid to the Founder Fathers in contemporary American debates, it has almost been wholly forgotten how deeply they embraced an ambitious and intellectually profound valuation of foreign legal experience. Jedidiah Kroncke uses the Founders' serious engagement with, and often admiration for, Chinese law in the Revolutionary era to begin his history of how America lost this Founding commitment to legal cosmopolitanism and developed a contemporary legal culture both parochial in its resistance to engaging foreign legal experience and universalist in its messianic desire to export American law abroad. Kroncke reveals how the under-appreciated, but central role of Sino-American relations in this decline over two centuries, significantly reshaped in the early 20th century as American lawyer-missionaries helped inspire the first modern projects of American humanitarian internationalism through legal development. Often forgotten today after the rise of the Chinese Communist Party in 1949, the Sino-American relationship in the early 20th century was a key crucible for articulating this vision as Americans first imagined waves of Americanization abroad in the wake of China's 1911 Republican revolution. Drawing in historical threads from religious, legal and foreign policy work, the book demonstrates how American comparative law ultimately became a marginalized practice in this process. The marginalization belies its central place in earlier eras of American political and legal reform. In doing so, the book reveals how the cosmopolitan dynamism so prevalent at the Founding is a lost virtue that today comprises a serious challenge to American legal culture and its capacity for legal innovation in the face of an increasingly competitive and multi-polar 21st century. Once again, America's relationship with China presents a critical opportunity to recapture this lost virtue and stimulate the searching cosmopolitanism that helped forge the original foundations of American democracy.

Regulation Versus Litigation

Regulation Versus Litigation

Perspectives from Economics and Law

  • Author: Daniel P. Kessler
  • Publisher: University of Chicago Press
  • ISBN: 0226432181
  • Category: Business & Economics
  • Page: 332
  • View: 3349
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The efficacy of various political institutions is the subject of intense debate between proponents of broad legislative standards enforced through litigation and those who prefer regulation by administrative agencies. This book explores the trade-offs between litigation and regulation, the circumstances in which one approach may outperform the other, and the principles that affect the choice between addressing particular economic activities with one system or the other. Combining theoretical analysis with empirical investigation in a range of industries, including public health, financial markets, medical care, and workplace safety, Regulation versus Litigation sheds light on the costs and benefits of two important instruments of economic policy.