Kagan’s agenda favors professionalism as the key alternative to hyper-adversarial contestation.
Robert Kagan’s research is distinguished by his extraordinary ability to ask productive research questions and, in addressing them, to combine rich conceptual development, macro-level comparison, and close empirical analysis of processes at the micro level. I agree wholeheartedly with the praise of my colleagues in this symposium, Jeb Barnes and Tom Burke, Cary Coglianese, and Dan Kelemen, on these sterling qualities of Kagan’s research.
But I think something has been missing in the remarks so far and, in fact, it is missing from many commentaries on Kagan’s work. What is missing is, I think, even basic or foundational to his work. I am talking about the normative undertone of many of Kagan’s analyses. Sometimes it is not an undertone: it is the main theme, the melody.
For example, in concluding his magnificent book Adversarial Legalism, Kagan turned from the higher planes of comparative empirical analysis to suggest some particular policy reforms that might tame adversarial legalism in the United States. While he emphasized that he did “not offer them as reform proposals,” he wanted to show “that plausible ways of sharply constraining adversarial legalism do exist” and that they “at least ostensibly would improve the quality of justice in some important respects.” In broad outline, these possible reforms might include, he suggested, greater social-welfare provision, more programmatic policies, and professional bureaucratic management of these policies, combined with a reduction in opportunity for legal challenges against the decisions of professionals within the system. This sounded to some a bit like a call for the United States to be more like northern Europe. Likewise, he encouraged Europeans to affirm their traditions of generous social-welfare provision and hierarchical structures of governance and to avoid the easy fix for social problems seemingly offered by adversarial legal innovations.
To be sure, this normative aspect of Kagan’s work is sometimes noted. Tom Burke and Jeb Barnes, in their wonderful contribution to this series, acknowledge, in their words, that Kagan’s “focus has always been on good governance rather than academic theory building.” But they suggest that his normative side sometimes “works against him.” It risks letting readers misunderstand an empirically rich concept like adversarial legalism as a simple criticism of too much legal contestation.
While I agree with their observation in many respects, I beg to differ in one. I want to encourage us to think of Kagan’s normative side as a core element of his scholarly project, even a foundation for it. It is, I think, the motivating force for the project; it drives the selection of his research questions and methods; and it is, in part, why Kagan’s project matters. In focusing normatively, Kagan is not engaged in “applied” research, as distinct from basic research. Instead, he has worked in what Donald Stokes called “Pasteur’s quadrant,” or “use-inspired basic research.” This is research that seeks to learn about fundamental processes not just for some abstract interest in empirical knowing but precisely because understanding these processes helps us to get the applications right.
With this normative aspect of Kagan’s research in mind, I now want to turn to what I see as one of his major theoretical contributions. Guided by the normative implications of Kagan’s work, I have come to see this a bit differently, too.
The usual point of reference is Kagan’s concept of “adversarial legalism.” Commonly this concept (and earlier versions of it, like simply “legalism”) are seen as the core of the project, and with justification. It is, after all, the book title. But concepts gain their meaning in part from what they are not, from the contrasting class of possibilities. What is the contrasting concept? I like to think of it as the hidden gem of Kagan’s work. It is also the animating force of his normative agenda.
I submit that the contrasting concept is professional expertise, the expertise of substantive, professionally-trained practitioners in an area of policy and management, guided by professional institutions and norms. So, for example, in his first book, Regulatory Justice, Kagan framed his analysis of the implementation of the wage-price freeze in light of two contrasting concepts: “the legal model” – his earliest analysis of paralyzing legalism in action – and what he called “the expert model.” The expert model of governance empowers professional experts to make discretionary judgments about what to do. In making these judgments they are to be guided by close examination of the substantive facts of each situation in light of the broad purposes of public policy. And they are to be held accountable by shared professional oversight within the managerial process. In concluding that fascinating book, Kagan notes how the professional regulators who implemented the wage-price freeze sometimes were able to avoid the excesses of legalism. This occurred mainly when they directly wrestled with the factual details of a case and talked among themselves about how best to address thorny issues of implementation of the rule in the case. They performed worst when they simply applied a rule to the facts (usually a simplified version of these facts) in a sort of cookie-cutter fashion. Put another way, the regulatory experts who applied the wage-price freeze were best able to improve the quality of their judgments when they engaged in a mutually-correcting, dialogue-based process of professional self-regulation inside the agency.
Likewise, in Going by the Book, written with Eugene Bardach, Kagan closes with perhaps the best discussion of professional judgment and professional self-regulation that one can find. Here, Kagan distinguishes professional responsibility from accountability. Responsibility is “doing what one judges to be right in a problematic situation involving someone else’s welfare, and accepting the moral blame for any harms that flow from one’s judgment.” Accountability is “doing what an outside reviewing party, not immediately present in the situation, will subsequently judge not to have been wrong.” Discussion with other professionals enhances responsibility, and, Kagan suggests, regulators are at their best, professionally, when they act with responsibility. They are (potentially) at their worst when they act out of concern of accountability.
Fast-forward to Adversarial Legalism. Here again, a key theme is how professional expertise, when given adequate resources and insulation from too much meddling by inexpert outsiders, generates both greater justice, more meaningful equal protection, and greater efficiency than its alternative, legalism. Kagan pursues this theme through a series of richly-developed comparisons of American-style legal contestation and European-style professional management. Thus, American prosecutors are elected; European prosecutors are professionals guided by professional institutions. American regulators are constantly looking over their shoulder at judges (and plaintiff litigators); European regulators are professionals checked mainly, again, by professional institutions and largely free of the fear of external legal checks. And so on. In many of these comparisons, the quality of professional expertise in Europe and its consequences for justice come off looking pretty good.
I suggested earlier that it is possible to understand Kagan’s normative agenda as amounting to a sort of pie-in-the-sky call for the United States to be more like northern Europe. I’m guilty of thinking this myself. But I think I got it wrong when I made that claim about his work a decade ago.
Instead, I have now come to understand Kagan’s project as genuinely American, rooted in a long and rich theoretical tradition that has favored professionalism as the key alternative to the pathologies of hyper-adversarial contestation. This American tradition dates to the Progressive Era, extends through the New Deal, and lives on in important areas of professional practice within both public and private institutions. This tradition has always drawn some of its ideas from observations of Europe, to be sure, but in the end it has always been about studying the elements of professionalism that take root in the United States and how these might be better cultivated and shielded from too much interference by legal checks.
In closing, I want to highlight the importance of Kagan’s life-long scholarly project and why he is so richly deserving of this award. I have suggested that his is in many respects a normative project, but I agree with my colleagues that it is the basic empirical research that Kagan has done in the light of this agenda that makes him so deserving of this award. Among Kagan’s many contributions, his greatest come from empirically examining, more richly and systematically than anyone else, how working professionals in government and business cultivate shared norms and make decisions that systematically shape justice – and how different institutional structures at the macro level, like the structural conditions for adversarial legalism, profoundly affect these processes of judgment at the micro level. This is a thoroughly original, fundamentally important research agenda.
This essay is part of a five-part series, Honoring Robert A. Kagan.