Using the work of Robert A. Kagan’s intellectual contribution on the intensification of law, leading authorities in the study of the politics of regulation and litigation examine the consequences of the expansion and intensification of law, both in the United States and the rest of the world.
Across the globe, law and legalism in all its forms, bureaucratic and adversarial, is becoming more intense, and thus more central to politics, public policy and everyday life. The consequences are profound. Yet commentary is often stuck on old questions. Does the intensification of law reflect the withering of other social institutions? Is it a sign of moral decay? Or is it, on another account, signaling a new era of respect for universal human rights? The Politics of Legalism takes us instead in directions relatively unexplored by both scholars and popular commentators on law. Like Kagan’s scholarship, it 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.
1. Introduction—What We Talk About When We Talk About Law, Thomas F. Burke and Jeb Barnes
2. Adversarial Legalism, Civil Rights, and the Exceptional American State, R. Shep Melnick
3. Seeing Through the Smoke: Adversarial Legalism and U.S. Tobacco Politic, Michael McCann and William Haltom
4. Kagan’s Atlantic Crossing: Adversarial Legalism, Eurolegalism and Cooperative Legalism in European Regulatory Style, Francesca Bignami and R. Daniel Keleman
5. Coping With Auto Accidents in Russia, Kathryn Hendley
6. Overcoming the Disconnect: Internal Regulation and the Mining Industry, Neil Gunningham
7. Devolving Standards: California’s Structural Failures in Response to Prisoner Litigation, Malcolm M. Feeley and Van Swearingen
8. Style Matters: On Pattern Analysis in the Study of Regulation, Cary Coglianese
9. The Politics of Legalism, Thomas F. Burke and Jeb Barnes
In Democracy in America, Alexis de Tocqueville famously noted that "scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." The importance of courts in settling political questions in areas ranging from health care to immigration shows the continuing astuteness of de Tocqueville’s observation. To understand how courts resolve these important questions, empirical analyses of law, courts and judges, and the politics and policy influence of law and courts have never been more salient or more essential.
Law, Courts and Politics was developed to analyze these critically important questions. This series presents empirically driven manuscripts in the broad field of judicial politics and public law by scholars in law and social science. It uses the most up to date scholarship and seeks an audience of students, academics, upper division undergraduate and graduate courses in law, political science and sociology as well as anyone interested in learning more about law, courts and politics.