Kagan the Comparativist

By Kelemen, R. Daniel | Judicature, March/April 2013 | Go to article overview

Kagan the Comparativist


Kelemen, R. Daniel, Judicature


Einstein once said, "The formulation of a problem is often more essential than its solution, which may be merely a matter of mathematical or experimental skill. To raise new questions, new problems, to regard old problems from a new angle, requires creative imagination and marks real advances in science."1 Asking the right questions is as important in social science as in physics, and far too much work in contemporary political science and socio-legal studies fails on this fundamental score. Over the course of his career, Robert Kagan has demonstrated again and again an extraordinary ability to ask the right questions. Kagan's work on American law and regulation, from works like Going by the Book2 to Adversarial Legalism,3 poses fundamental questions about the nature of regulation in the United States. And fortunately for us, his work has not just asked the right questions, it has gone a long way toward answering them. In formulating and answering these questions, three elements of Kagan's approach stand out: his knack for formulating new concepts, his facility for combining macroscopic and microscopic analysis and his emphasis on viewing American law and politics from a comparative perspective.

As Sartori4 and others have taught us, concept formation is a critical element of social science research. Many scholars of law and politics fail to ask the right questions because they lack the conceptual tools necessary to comprehend the phenomena of interest to them. Many scholars before Kagan recognized that there were distinctive features of the American legal and regulatory style, but Kagan surpassed others in his ability to formulate a concept that could capture these distinctive elements. Kagan's concept of adversarial legalism captures the distinctive features of the U.S. approach to policymaking, and dispute resolution. It is a multi-dimensional, 'thick' concept, which can be described in terms of two primary features (formal legal contestation and litigant activism) or further unpacked to reveal a number of interrelated characteristics including (I] complex rules, (2) adversarial dispute resolution, (3) costly legal contestation, (4) strong sanctions, (5) frequent judicial review of administrative actions, (6) political controversy over legal rules, (7) politically fragmented decision-making systems. and (8) legal uncertainty and instability. Equipped with the concept of adversarial legalism, one could see better the common themes that link seemingly disparate areas of law and policy.5 And prospectively, Kagan's concept of adversarial legalism has provided a tool and a common vocabulary for a host of other scholars of American and comparative law and politics.

But Kagan is not just a theorist, he is an empiricist who can "soak and poke"6 with the best of them, A distinctive strength of Kagan's empirical work is the way it so effectively combines macroscopic and microscopic analysis. Kagan looks for the big picture and the fine grain. His work on adversarial legalism combines empirical analysis of broad trends affecting the structure of American government, the economy, the political and legal cultures and the legal profession with analysis of highly detailed developments in policy areas ranging from criminal justice, to civil procedure, to tort law to social and environmental regulation. In doing so, he shows how phenomena ranging from punitive damage awards in personal injury cases, to class actions in anti-trust cases, to plea bargaining in criminal cases, to litigation over environmental impact assessments are connected to deeply entrenched structures of the American political and economic system, and aspects of American legal culture and the legal profession.

In his work on American exceptionalism, Seymour Martin Lipset famously said that he who knows only one country, knows no country.7 Unfortunately, parochialism dominates much of the study of American public policy. In analyzing fundamental questions about the nature of law and regulation in the United States, Kagan has shown himself to be that rare sort of Americanist - one with an instinct and a vocation for comparative politics. …

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