Chapter 1

Adversarial Legalism: policymaking, policy implementation, and dispute resolution by means of lawyer-dominated litigation.

Benefit: flexible and creative judiciaries, checks against official corruption and arbitrariness, protect individual rights, as deterrents to corporate heedlessness. Enhance capitalism and the system of government. (3)

Negatives: inefficient, complex, costly, inequality, injustice, unpredictable, time consuming (4)

Purpose of the book: descriptive and explanatory, explain characteristics and features, show the differences from other systems and highlight ways that it frustrates the quest for justice. (4)

Adversarial legalism is not merely a method of solving legal disputes but also a mode of governance. (5)

Two salient characteristics of adversarial legalism:

·      formal legal contestation – competing interests and disputants invoke legal rights, duties, and procedural requirements, backed by recourse to formal law enforcement, strong legal penalties, litigation, and/or judicial review.

·      litigant activism – legal contestation in which the assertion of claims, the search for controlling legal arguments, and the gathering and submission of evidence are dominated by disputing parties or interests, acting primary through lawyers.

Two consequences:

·      costliness

·      legal uncertainty

Chapter 2 The Two Faces of Adversarial Legalism (18)

Two stories:

• Southern prisons: adversarial legalism’s capacity for making law and government more responsive to claims for decency and justice.

• • (19-21) adversarial legalism works to force improvements on the Alabama prison system and lead to the development of nationwide professional standards and an accreditation system run by the American Correctional Association.

  • The virtues of adversarial legalism: American judges are open to creative advocacy and are very powerful. Because hierarchical constraints on American lower court judges are looser than those that prevail in other judiciaries, individual judges often enjoy enough legal discretion to reinterpret the law and act on the basis of their moral convictions. (22)

• Oakland Harbor: how adversarial legal structures designed to increase governmental responsiveness can also lead to governmental paralysis and to injustice.  (18) (23-29)

• • (29) adversarial legalism’s flexibility produce a legal mess. Expensive, time consuming, unpredictable, extortive, and economically destructive. (31) Adversarial legalism produces irrational, unjust, and inefficient outcomes as well.

Chapter 3 The Political Construction of Adversarial Legalism

Four basic engines of adversarial legalism (35): litigant-dominated modes of adjudication; a politically selected judiciary, with powers to reverse legislative and administrative decisions; a jighly entrepreneurial legal profession; and trial by jury.

It was that collision -- between politically fragmented government and urgent political demands for action -- that ignited the fires of adversarial legalism (45)

In the U.S., politically divided government and fragmented political parties encouraged and enabled organized interest groups - representing particular localities, industries, or ideologies - to demand statutory amendments that would help them exert influence on policy implementation and challenge unsympathetic administrative officials in court. (49)

Problem of excessive litigation - an evolving trend of judge-made law complexity, political struggles over judicial selection, rapid shifts in legal doctrine - disputants have more incentive to hire lawyers and seek to reshape the law to their own ends. (50)

Summary: (58) The fundamental reason lies in the collision between demands for more active government and some enduring features of the American political system -- political structures that fragment governmental power, a political culture that mistrusts “big government”, an increasingly competitive but disaggregated business system, and a legal culture that promotes and validates adversarial legalism.

Chapter 6 Adversarial Legalism and Civil Justice

By placing the powerful tools of pretrial discovery in the hand of entrepreneurial lawyers, adversarial legalism provides more probing forms of fact-finding than do other civil justice systems, and it provides more flexible and potent remedies. The politically responsive American judiciary is quicker than its counterparts in other countries to endorse new causes of action and more willing to craft legal techniques with which to call governmental bodies and corporations to account for unjust decisions or deedless practices. However, it makes American civil litigation especially costly, unpredictable, and alienating. (100)
Gilmore v. Columbia falls Aluminum Company exemplifies that American adversarial legalism provides ordinary people legal extraordinary legal weapons to pursue legal claims against economically powerful parties.

Johnson v. Johnson illustrates the costliness, legal unpredictability, and arbitrary outcome. It’s possible for lawyers to initiate marathon pretrial depositions and influence the judge’s impartiality. It does show some positive sides as well, for example, more opportunity to uncover the human truths that lie behind the documentary mask. (102-103)

• Four disturbing implications: (103-104)

• • Litigation is costly to the parties

  • Entails legal unpredicatability

  • Injustice when parties feel compelled to abandon legally justifies positions in order to avoid the costs and risks of adjudication

  • Inequality as people who can better withstand the costs and risks of litigation and can obtain better lawyering enjoy a greater advantage in the United States over parties who cannot.

Adversarial Legalism and the Cost of Civil Litigation

• In the average American product liability lawsuit, lawyers’ fees for both sides, added together, are larger than the amount received by the plaintiff. (104)

• Why this costly?

• • Lawyer-dominated versus Judge-dominated litigation

  • • In the U.S. the opposing counsel takes the burden identifying the relevant law, summarizing the evidence, and so on. (105)

    • The European practice of allocating many costs of litigation to judges almost certainly results in a much less costly civil adjudication system not only for disputing parties but for society at large. (105)

  • Redundancy (106)

  • • In the U.S., separate lawyers for all parties participate in lengthy pretrial depositions, where parties and witnesses are first questioned by one lawyer, then cross-examined by another. In cases that go to trial, the lawyers, parties, and witnesses repeat virtually the same interrogation in open court. While German civil litigation is remarkably different: the court gathers and evaluates evidence over a series of hearings, as many as the circumstances require. German parties and witnesses testify just once, when interrogated by a judge. There is less necessity to have lawyers present each time a piece of evidence is examined by the judge. (106)

  • All-at-once versus Episodic trials

  • • American pretrial system requires lawyers to investigate everything before entering into the courtroom. Lawyers can seldom search for further evidence, while lawyers and litigants in Germany are able to develop more response if a case takes an unexpected turn. (106)

  • Dueling Expert Witnesses

  • • In complex cases in which expert technical assessments are required, contending American litigants each hire in carefully coach their own expert witness. however in a more hierarchical system such as Germany's , the court appoints a single expert witness who is not coached in advance by anyone. Therefore expert testimony in U.S. patent litigation is much more costly than in Germany. (107)

• Time Consuming

• • Trial by Jury - Time consuming

  • • The United States trial by jury is more time-consuming. Specifically, because jurors are not given a written summaries of the issues and evidence in advance the whole story of the dispute must be presented to them orally, each witness is questioned first by one set of lawyers then cross examined by another, also American jurors cannot comment during trial or indicate that they are satisfied on a certain point. Hence, lawyers who are uncertain which issues will be regarded as crucial must cover all issues and playing it safe often called extra witnesses to testify. (108)

  • Pretrial Discovery - time consuming

  • • American pretrial discovery in negotiation process is costly inefficient and slow. According to the second circuit court of appeals judge Ralph K Winter he finds dad pretrial discovery involves lesson considerable two in enormous waste and it imposes costs usually without corresponding benefits. (108)

  • Delay: The size of their cereal legalism’s direct costs America litigants must endure is extraordinary delays if they insist on a jury trial.

  • The decline of adjudication

• Legal Unpredictability

• • Johnson v. Johnson

  • Getty Oil and Pennzoil Corporation

  • Professional versus political judiciaries (111)

  • • Under a pragmatic results oriented legal culture the American church is more likely to rely on her own judgment to reach a result that she thinks is just.  This may sound appealing but it also asked to legal uncertainty and unpredictability. Comparing with German course they have a specialized chamber that do you switch commercial disputes in another that deals with patent dispute. In other hierarchical organized European legal systems young judges are rated and evaluated. The code of this organized career management system is to homogenize the judiciary to make its decisions legally competent uniform and predictable. The US attorneys also receive legal training but the unpredictability is hiring in other economically advanced countries, because some lawyers or judges have had little courtroom experience and get little formal training and there is no systematic merit-oriented promotion system. (112)

  • Jury

  • • (114) researchers have found that jury decisions are not real and even though different individuals have different perceptions to wars an issue. In the study of more than 500 lock juries the researchers found that in deliberating over the appropriate monetary damage award juries or unpredictable, producing a wide range of results. moreover jury deliberations often yielded awards far larger than evaluations that most individual jurors had made before deliberation began and sometimes larger than any juror had made before deliberating.

    • Joseph Sanders located the problem not in the jury per se but in organization of a jury-focused trial system dominated by the parties’ lawyers. The lawyers present different kinds of scientific evidence and cross-examine the witnesses designing more to generate contradictions than to inform the jury. (115)

• Injustice

• • By making litigation and adjudication slow, very costly, and unpredictable, adversarial legalism often transforms the civil justice system into an engine of injustice, compelling litigants to abandon just claims and defenses.

  • The Dixie Flag case. Over 80% of municipal government attorneys of knowledge that on occasion they settle cases that would be winnable just to save money in the short term. (117)

• Manipulative Lawyering

• • Compared with the United States, professional code of ethics in the Netherlands as in England in other countries in Western Europe, more strongly enjoin lawyers to temper one-sided advocacy in the search for objective legal truth. Moreover, in the United States with its long delays before adjudication, its weak controls over lawyer-controlled pretrial discovery, its legal uncertainty, and its opportunities for forum shopping, lawyers have much stronger incentives to see what they can get away with then they do the Western European countries. (118)

  • Nevertheless, reputational networks discourage excessively adversarial litigation activity. (119)

• Inequality

• • (121)Under adversarial legalism, where privately hired lawyers before the demanding tasks of interviewing in cross-examining witnesses, devising litigation tactics, and conducting trials, it is quite likely that these tasks will not be performed adequately and equally for all parties. (122) Rich litigants generally can hire better lawyers and opponents who are not rich, and they can buy the services of consultants to help them choose a favorable jury and test out arguments before mock juries.

  • (123)Other economically advanced democracies attempt to minimize the legal effect of economic equality by ensuring that not only the poor but a substantial portion of the working and middle classes are eligible for government-reimbursed legal services. The United States, despite its commitment to lawyer dominated methods of litigation, provides government support for civil legal services only to the poor and gradually has been shrinking the level of support.

• For all is cost and efficiency, therefore, the system structured by adversarial legalism persistent. It persistent because of a political tradition that is mistrustful of bureaucratic authority, preferring to fragment authority and to hold is legally accountable through individually activated rights in adversarial litigation. Under the political and economic circumstances, American politicians, interest groups, and the general public have trouble accepting any alternative. (125)

Chapter 8 Adversarial Legalism and the Welfare State

• Means tested

• More concern with moral hazard

• Naming Deadbeat Dads: the AFDC program states that when the mother is on welfare, for if the father can be compelled to pay child support, the state’s AFDC obligation is reduced or disappears entirely. A new federal welfare law ordered states to produce annual increases in the percentage of unwed fathers acknowledging paternity in order to avoid losing substantial amounts of federal welfare money. (169)

• The Positive effects of adversarial legalism

• • Adversarial legalism provides a public forum for challenging legislative and bureaucratic malpractice, for exposing the prejudices or lack of imagination that may be embodied in statutes and regulations, and for arguing that considerations of social justice sometimes should outweigh fiscal concerns and considerations of bureaucratic efficiency. (169)

• The Negative effect of adversarial legalism

• • In a regime of adversarial legalism, litigation bred more litigation, conflicting decisions, legal complexity, and legal uncertainty. (171)

• Limitation of adversarial legalism:

• • adversarial legalism has been unable to nudge american welfare policy toward the levels of social provision provided by western european welfare states. American judges lack the power to tax, hence they have only limited authority to promulgate redistributive policies or compel legislatures to do so.  (174)

  • Adversarial legalism proved to be a limited weapon in other areas of social policies as well. E.g. adversarial legalism has not provided American women with a constitutional right to a government-funded abortion, and in many places, actual access to abortion services is very difficult.

  • It has not been of much use in expanding governmental guarantees of health care, or child care, or subsidized housing, or effective job training and placement of the unemployed.

  • It’s not a cause of the grudging and incomplete character of the American social welfare system. It can more properly be viewed as a consequence - the response of politically liberal lawyers and judges to a political system that has not provided a nationally uniform, broad-based regime of social and health insurance, public housing, and generous employee benefits. (175)

Chapter 9 Adversarial Legalism and Regulatory Style

• Adversarial legalism makes American regulation more costly, more inefficient, and more inflexible. That inefficiency and inflexibility tend to undermine the kind of government-business cooperation that is essential for fully answering the public’s regulatory prayers. (182)

• PREMCO’s Regulatory Experience

• • American environmental regulations are more detailed and prescriptive, and american enforcement processes, in contrast with japan’s, emphasize the legalistic interpretation of formal regulations and the imposition of sanctions to modify economic behavior. The complex american regulatory scheme poses more difficulties in compliance, imposes substantial additional economic costs on regulated entities,and engenders antagonism and defensiveness on the part of firm personnel.(182)

• The American Regulatory Style

• • American regulatory law almost invariably is more legalistic -- that is, more detailed, prescriptive, and complex.

  • American regulatory regimes more often enforce the law legalistically: they are more likely to issue formal legal sanctions when they encounter rule violations, and their legal penalties tend to be much more severe.

  • Relationships between regulators and regulated entities in the U.S. are much more often adversarial. (187)

• Consequence: quite effective