Kagan the Explorer

By Burke, Thomas F.; Barnes, Jeb | Judicature, March/April 2013 | Go to article overview

Kagan the Explorer


Burke, Thomas F., Barnes, Jeb, Judicature


LIFETIME ACHIEVEMENT AWARD 2012 ROBERT A. KAGAN

Editor's Note: Robert A. Kagan is the 2012 recipient of the Lifetime Achievement Award of the Law and Courts Section of the American Politicai Science Association, recognizing his four-decade career as professor of political science and law at the University of California, Berkeley. The award cites Kagan's "elegant blend of legal, socio-legal, political, historical, and comparative analysis" that "redefined the boundaries of the law and courts field." We asked scholars in the law and courts field to introduce readers to some of the major themes of Kagan's work and explain its significance for the study of law and public policy both in the United States and abroad.

Like a botanist in the tropics, intrigued but overwhelmed by a profusion of flora, what Robert Kagan saw when he looked at law and society in the late 20th and early 21st Century was law growing everywhere - law pouring out of every institution, law seeping into the nooks and crannies of everyday life, law growing both in its reach and density. Kagan attributed this profusion of law to "the relentless pressures of technological change, geographic mobility, global economic competition, and environmental pollution," which generate new inequalities, new injustices, new risks, and new cultural challenges to old norms.' But what is the scholar to do when, as Kagan put it in one article, "there is too much law to study?"2

What Kagan does, mostly, is to study law not in books or in courtrooms, but in the everyday world where it lives. Perhaps because of his pre-Ph.D. background as a business lawyer, Kagan often studies law in the world of commerce. From his dissertation, for which he was employed as a regulator implementing Richard Nixon's wage and price freeze, to his latest work on pulp mills, diesel buses, and trucks, Kagan is truly a law in society scholar, investigating the life of the law in ordinary, sometimes banal places - fast food restaurants that enforce smoking rules, shipping ports that struggle with labor and environmental rules, and factories that must contend with OSHA inspections.

The settings and subjects of Kagan's research are diverse, but each is part of a quest to understand legal authority and how it works in the world. In this quest Kagan is closely connected to Max Weber, the founder of sociolegal studies. Weber observed that systems of authority were changing: Rule by religious leaders, or by charismatic individuals, was being replaced by "rationallegal" authority. But what would legal authority look like in practice? Weber's answer, for the most part, was that law would be bureaucratic, centralized and hierarchical. Weber was the prophet of bureaucratic rationalization, the movement of society towards predictable, calculable rules. The legal system's job in such a society was merely to implement and apply commands created elsewhere, in the political system.

But of course much of American law does not look that way. It does much more than apply rules, and it is much more decentralized, more fluid, more unpredictable than Weber's ideal type.3 This is the step from which Kagan's work on "adversarial legalism" begins.4 What gives American law its open-ended character, Kagan observes, is that it is typically "party-centered" rather than hierarchical, meaning that instead of some legal authority, it is the parties to a dispute that drive American law. The parties can argue not just about how a rule of law applies to the facts of their case, but also over the purpose and justness of the rules themselves, as well as the justice of the process used to resolve the dispute. In adversarial legalism, then, everything is up for grabs.

American law and legal institutions, Kagan argues, were suffused with adversarial legalism, with powerfully mixed consequences. Adversarial legalism's open-endedness makes it capable of great heroism, as when it used to reform barbarous prisons, stop police from torturing suspects, or recognize the ways in which sexual harassment abuses women. …

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