Varieties of Legal Order

The Politics of Adversarial and Bureaucratic Legalism

Edited by Jeb Barnes, Thomas F. Burke

© 2018 – Routledge

224 pages

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Hardback: 9780415633383
pub: 2017-07-01

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About the Book

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.

  • Part One considers bureaucratic legalism, a terrain in which popular and political discourse often conceives as a pitched battle between business and government, and in which claims about quantity—"too much" and "too little"—take center stage. Here, the contributors examine the many ways in which regulators and the regulated cooperate, and the extent to which regulated entities internalize norms and practices associated with bureaucratic.
  • Part Two considers adversarial legalism, a term that even among academics is often reduced to "litigiousness." The chapters in this section show that adversarial legalism is a much more complex, contingent, and multi-sided phenomenon than the popular debate over litigiousness suggests.
  • Part III examines Kagan’s core concepts in a comparative framework. Although some sometimes treat adversarial legalism as an American disease, scholars are increasingly finding it proliferating elsewhere, and debating whether it can take a prominent role in nations quite different in tradition and political structure from the United States.

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.

Table of Contents

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

About the Editors

Jeb Barnes is Associate Professor of Political Science at the University of Southern California and a former Robert Wood Johnson Scholar in Health Policy Research. He is the author of five books and numerous peer-reviewed articles on the intersection of law, politics and public policy and mixed-methods research strategies, most recently How Policy Shapes Politics (2015), co-authored with Thomas F. Burke, and Finding Pathways: Mixed-Method Research forStudying Causal Mechanisms (2014) with Nicholas Weller.

Thomas F. Burke is Professor of Political Science at Wellesley College. His research focuses on the place of rights and litigation in public policy, and the ways in which organizations respond to rights laws. His most recent books are How Policy Shapes Politics (2015), co-authored with Jeb Barnes, and the 9th edition of Reason in Law (2016) co-authored with Lief Carter. In a stroke of extraordinary good luck, his Ph.d. dissertation, Litigation and its Discontents, was supervised by Bob Kagan. It won the 1996 Edwin S. Corwin Award for best dissertation in public law.

About the Series

Law, Courts and Politics

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.

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Subject Categories

BISAC Subject Codes/Headings:
POLITICAL SCIENCE / Public Affairs & Administration
POLITICAL SCIENCE / Public Policy / General
POLITICAL SCIENCE / Government / Judicial Branch