Robert A. Kagan: Man of Style
Coglianese, Cary, Judicature
In recognizing Robert A. Kagan with its Lifetime Achievement Award, the American Political Science Association's Section on Law and Courts has honored not merely a scholar of great distinction in the study of law - but also a man of style.
In referring to Kagan as a man of style, I am making no commentary on his choice of attire or office décor - both of which have always seemed perfectly fine to me but neither of which I could ever properly judge. Nor do I wish to be taken to suggest that Kagan has merely followed fashionable scholarly trends, something for which no scholar who started studying the intricacies of regulatory behavior more than perhaps a decade ago, if even today, could be mistaken of doing. I also do not refer to Kagan's exceptionally graceful and generous style of mentoring students and younger scholars, something which I have long admired and appreciated.1
Rather, in characterizing Kagan as a man of style I mean to call attention to a vital contribution his scholarship makes to our understanding of regulation. In study after study, Kagan has shown us how social phenomena and human behavior can cluster together, forming meaningful and recognizable patterns - or styles. He has contributed greatly to our understanding of legal styles, how they vary, and what difference they make, opening up for scholars of regulation - and law more generally - significant new paths for further inquiry.
Even a breezy walk through Kagan's canon shows his uncanny eye for style. His earliest book, Regulatory Justice: Implementing a WagePrice Freeze, comprised a study of the federal government's implementation of a temporary wage freeze.2 It remains one of the best ethnographic studies of regulatory implementation ever written, offering an insightful account of how regulators go about securing compliance with their rules. Here, Kagan introduced the concept of legalism - a style of implementation characterized by the formal, mechanistic adherence to rules - that he found shaped the effectiveness of the government's implementation of the wage freeze.
His subsequent book, written with Eugene Bardach, Going by the Book: The Problem of Regulatory Unreasonableness, brought legalism even more squarely into focus, documenting the formal, by-the-book enforcement tendencies of many health, safety, and environmental regulatory agencies throughout the United States.3 One of Bardach and Kagan's central conclusions was that the style of regulatory enforcement can make a difference in how regulated entities respond. Inspectors and other enforcement officials can interact cooperatively with the managers of regulated firms, or they can "go by the book" and penalize firms for each and every formal violation, regardless of importance. Such a legalistic enforcement style may seem necessary, especially today in light of disasters such as the financial crisis or Gulf Coast oil spill, but Bardach and Kagan suggested it also can counterproductively engender resistance as firms' managers view government behavior as downright unreasonable. In the years since Going by the Book, researchers have doggedly studied the comparative effectiveness of cooperative and legalistic regulatory enforcement styles, sometimes with varying results but always with recognition of the ideas Kagan has developed.
Kagan moved beyond just the behavior of regulatory inspectors in his magnificent and provocative book, Adversarial Legalism: The American Way of Law, in which he sought to understand the overall style of the American legal system.4 In Kagan's writing, "adversarial legalism" became a shorthand for "the rambunctious, peculiarly American style of law and legal decisionmaking."5 He drew inspiration for this characterization of American legal style from a monumental case study of seaport administration in Oakland, California he had published a decade earlier in the Journal of Policy Analysis and Management6 - an article that has become one of the journal's most frequently cited works. …