Kagan’s insight on legal “styles” paves the way for future regulatory studies and policymaking efforts.
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.
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 Wage-Price Freeze, comprised a study of the federal government’s implementation of a temporary wage freeze. 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 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. 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 how important. 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. “Adversarial legalism” became for Kagan a shorthand for “the rambunctious, peculiarly American style of law and legal decisionmaking.” He drew inspiration for this characterization of American legal style from an in-depth case study of seaport administration in Oakland, California he had published a decade earlier in the Journal of Policy Analysis and Management– an article that has become one of the journal’s most frequently cited works. In his book, Adversarial Legalism, Kagan vastly extended his research to show that, in realm after realm, American policy-making exhibited a frequent reliance on detailed rules and courts to manage and settle its large number of conflicts. Although observers of the American system since at least de Tocqueville had acknowledged the important role of the court system, Kagan argued that “the adversarial legalism that has pervaded the United States in the last few decades is both more extensive and more intense” than ever before.
Appearing in print a year before Adversarial Legalism, Kagan’s co-edited volume, Regulatory Encounters: Multinational Corporations and American Adversarial Legalism, offered further evidence of America’s distinctive regulatory style. Built around a cleverly designed set of comparative case studies of different fields of business regulation, each of the book’s chapters focused on a different multinational corporation’s encounters with regulators in different developed countries. Collectively, the chapters reinforced the conclusion that American regulation is more legalistic and adversarial than cooperative. Managers of U.S. operations generally reported filling out longer forms and being governed by more detailed and extensive permits. They required permission from a more diverse and fragmented set of governmental bodies at the local, state, and federal levels. They encountered the threat of greater resistance to their operations from members of the public who have greater opportunities for participation in governmental decision making. The combination of these factors resulted in both greater uncertainty and longer delays for the companies in overcoming regulatory hurdles in the United States. Reflecting on the findings from this series of case studies, Kagan observed that the fragmented and legalistic U.S. regulatory style can help check governmental abuses and offer other benefits to society; however, he questioned whether these benefits fully justified the costly burdens and inefficiencies created by the American regulatory style.
More recently, Kagan shifted his attention from regulators’ style to the management style of regulated firms. His monumental, co-authored book, Shades of Green: Business, Regulation, and Environment, set out to explain the pollution control behavior of fourteen pulp and paper mills across four developed economies: the U.S., Canada, Australia, and New Zealand. Some mills did a vastly better job at reducing pollution than did others. Some even did better than they were required to do by law. Kagan and his co-authors showed how the variation in pollution control could be explained by variation in each mill’s license to operate, a metaphor for the combined effect of the external regulatory, economic, and social pressures that bear down on business organizations. Yet Kagan and his co-authors also emphasized the role of each firm’s internal “management style” in explaining its environmental performance.
Drawing on extensive interviews with mill managers, they sought to identify management style based on each mill’s responsiveness to external forces, its environmental “ethos,” its willingness to search for advantageous opportunities to reduce pollution, and its commitment to faithful implementation of internal environmental policies. Kagan and his collaborators classified each mill’s management style into one of five ideal-types, ranging from the least committed “environmental laggards” to the highest performing “true believers.” By peering inside the black box of the firm to identify internal organizational characteristics that made up “management style,” Shades of Green blazed a new path for regulatory scholarship as well as regulatory policy reform. After all, if management style helps explain firms’ compliance behavior and social performance, then we need to study style more closely and seek to understand what might influence firms’ styles.
Throughout his body of law and social science scholarship, Kagan has time and again found meaningful patterns worthy of his characteristically careful empirical scrutiny, and in so doing he has defined the contours of much research by other scholars. He has truly captured style – the style of regulatory inspectors, entire legal systems, and regulated businesses – and he has taught us why and how style matters. It matters because how someone acts can be as meaningful to others as what actions they take. It matters because the combination of discrete actions can sometimes amount to a whole that is qualitatively distinct from the sum of each of the parts. It matters, we might say, because often people think it matters.
I remember a presentation Kagan once gave at a workshop I organized in Washington, D.C. The workshop brought together both academic researchers and government regulators, and Kagan presented a paper on management style as part of the opening panel. For the rest of the day, I felt sorry for the other presenters who had to follow. Kagan’s typology of management styles resonated with the government regulators so much that his was just about the only paper they wanted to talk about for the remainder of the workshop. If the virtues of social science generalizations lie in their robustness, replicability, insight, and verisimilitude, Kagan’s work exhibits them all — but it sets the gold standard for verisimilitude. The legal, enforcement, and management styles he has articulated are not Kagan’s idiosyncratic ways of fashioning together complex legal and behavioral phenomena. They are patterns that resonate with the individuals who inhabit the regulatory world he has studied and that line up with how many of us scholars view the world too, even if we never articulated these patterns as distinct “styles.”
Of course, an emphasis on style does have its own limitations and challenges, a point that Kagan has forthrightly and repeatedly acknowledged. If style is like the proverbial elephant, how it “looks” can depend on which part of it one examines. “It is risky,” Kagan reminded us in Regulatory Encounters, “to make sweeping generalizations about entire national legal systems, with all their internal complexity and variation.”
In some of my own early research, I uncovered how seriously wrong scholars were about adversarial contestation over environmental regulations in the United States. Instead of the prevailing wisdom holding that interest groups challenge eighty percent of all U.S. Environmental Protection Agency regulations, for example, a simple inspection of court records revealed that closer to eighty percent of these regulations escaped litigation altogether. Of course, no single datum defines a national legal style, but if so many people can be wrong about such a basic fact about regulatory conflict in their own country, it is not unreasonable to raise at least a small flag of caution about judgments made about broader styles across countries, especially if those judgments are not fixed by intersubjectively valid metrics.
Furthermore, if styles are at least partly perceptual, they may be vulnerable to the myriad cognitive biases that psychologists and behavioral economics have documented. Researchers may “see” more conflict, for example, only because our brains are hard-wired to be more receptive to it. Undoubtedly it is harder to see potential conflicts that never erupt.
Styles can also change. Over the years, scholars have suggested a growing convergence in the American style of regulation and the styles found in other developed countries. To my mind, this more recent work does not undermine Kagan’s earlier comparative analysis, although it does suggest the possibility that the differences in legal styles he observed are neither permanent nor based on rigid, structural differences. Kagan always accepted that such a possibility exists; however, in recent work he has forcefully resisted the idea that countries in Europe will soon, if ever, become fully Americanized in their legal styles. Whatever side one takes in this debate, the point remains that styles can and do change, even if slowly, and social scientists must be ever on their guard for such changes. Indeed, dynamism in styles can itself be a worthy subject for empirical research, as Kagan’s work has itself taught us.
A final caution about styles arises when social scientists seek to use them as explanatory variables. Consider what would happen if social scientists coded a firm’s environmental management style based even partly on observations about the investments the firm has made in pollution control technology or other actions the firm has taken that might be indicative of an environmental ethos. If actions provide the basis of judgments about style, it becomes circular to try to use style to explain why some firms perform better or act more responsibly than other firms. Style, in short, cannot explain everything.
Kagan has always proceeded with these cautions in mind. He has never sugar-coated the hazards – nor shirked from working his way around them as best as he feasibly could. He richly deserves the recognition recently bestowed upon him by the APSA Law and Courts Section. His body of work, magisterial in its scope and insight, has proved a model of intellectual achievement. And, yes, of style too.
This essay is part of a five-part series, Honoring Robert A. Kagan.