Robert A. Kagan discusses how litigation shapes regulation, policymaking, and accountability in the United States.
In a conversation with The Regulatory Review, Robert A. Kagan discusses the central role that litigation and legal contestation play in policymaking, bureaucratic decision-making, and institutional accountability in the United States.
The U.S. regulatory system has long relied on courts and legal challenges as mechanisms for policy implementation and enforcement. Not only can regulatory agencies’ decisions be challenged and subjected to review by courts, but Congress has even drafted regulatory statutes that authorize private individuals and organizations to enforce regulations through lawsuits. Kagan has observed that this reliance on adversarial legal processes distinguishes U.S. regulatory governance from other systems that place greater emphasis on bureaucratic discretion.
In this Spotlight, Kagan explains that the possibility of litigation shapes regulatory agencies’ behavior. Legalistic procedural requirements and anticipated litigation can slow regulatory decision-making while at the same time safeguarding public values.
Robert A. Kagan is the emeritus Emanuel S. Heller Professor of Law and Professor of Political Science at the University of California at Berkeley. He is a fellow of the American Academy of Arts and Sciences and a recipient of the Law & Society Association’s Harry Kalven Prize for distinguished sociolegal scholarship. Kagan has written extensively on regulation, administrative law, and comparative legal institutions. His 2001 book, Adversarial Legalism: The American Way of Law, serves as a foundational work on the distinctive role of litigation in U.S governance.
The Regulatory Review is pleased to share the following interview with Robert A. Kagan.
The Regulatory Review: How do you define “adversarial legalism”? How has your definition of the concept evolved, if at all, since you first developed the term?
Kagan: In my book Adversarial Legalism, I describe it as policymaking, policy implementation, and/or dispute resolution by means of legal contestation that is “party-and-lawyer dominated.”
I emphasize the party-and-lawyer dominated aspect in order to distinguish adversarial legalism from “bureaucratic legalism,” a more hierarchical, judge-dominated form of legal contestation common in the legal systems of continental Europe and around the world. I also emphasize the formal legal contestation aspect of adversarial legalism to distinguish it from other methods of policymaking, policy implementation, and dispute resolution that emphasize discretionary or political judgment.
Since I published that book, I don’t think my conception of adversarial legalism has evolved much, if at all. It was born intact, embedded in a typology of modes of dispute resolution and policy implementation—a typology I adapted from earlier typologies, particularly those of Mirjan Damaška and Jerry Mashaw.
This is rather abstract, social science talk, but I think that basic typology is one of the most important features of Adversarial Legalism, the book.
TRR: What factors contribute to the distinctive emphasis on lawsuits in U.S. regulation and policymaking more generally, in comparison with the systems in European countries and elsewhere in the world?
Kagan: The most important factor, I believe, is American political culture, which harbors more mistrust of government bureaucracy than the political culture of most parliamentary democracies. That distrust is why regulatory rulemaking in the U.S. is more often challenged in court, by liberals and conservatives alike, as are the issuance of permits and the assessment of regulatory penalties. Similarly, many regulatory statutes authorize enforcement by private lawsuits because of suspicion that regulatory officials will not enforce them adequately.
TRR: How has adversarial legalism influenced the way federal and state agencies in the United States implement major policies?
Kagan: I think the threat of adversarial legalism induces officials to adhere more closely to their authorizing statutes and regulations. This tends to make officials more legalistic and unbending, but it also can make them fully attentive to statutory values, purposes, and outcomes.
TRR: What role should litigation play in the regulatory process?
Kagan: As little as possible. Litigation is costly, very slow, and often infuriating. But sometimes it is necessary or essential. For enforcement officials, litigation is necessary and essential when a regulated entity is persistently or seriously noncompliant. Litigation is necessary and essential when a regulatory agency issues a rule or order that is ungrounded in evidence and would do more harm than good.
TRR: Advocates of the recent “abundance” movement call for reducing various procedural impediments to housing and infrastructure development projects. How does adversarial legalism affect these kinds of projects?
Kagan: The “abundance agenda” is indeed impeded by adversarial legalism, which delays and adds suffocating costs to valuable housing or infrastructure projects. That is the primary focus of Chapter 10 in Adversarial Legalism. But we should not forget that legalism is essential when infrastructure or housing projects are initiated without serious attention to their likely social or environmental impacts—or when a heedless or corrupt presidential administration seeks to repeal invaluable regulatory protections. For that reason, it doesn’t make sense to try to sweep adversarial legalism wholly aside in a headlong concern for building things fast.
Therefore, bending adversarial legalism to accommodate the abundance agenda in a sensible manner requires selective statutory measures, shifting land use decisions from localities to governors or federal agencies, and imposing strict time limits on the environmental analyses that accompany building permits.
TRR: “Abundance” has also reignited questions about whether regulation constrains or enables growth. Ideally, how can regulation best promote innovation and economic growth while still advancing other key objectives, such as correcting market failures?
Kagan: While local land use and some environmental regulations constrain some kinds of growth, such as infrastructure projects, I don’t think most environmental and safety regulations seriously impede economic innovation or growth. The claim that they do, it seems to me, has been a political slogan rather than a demonstrated phenomenon.
Much has been made of the faster economic growth in politically “red” states like Texas, with weaker environmental and land use regulation, than “blue” and “green” California. It seems to me that those touting the Texas model assume that all economic growth is good growth—disregarding the not insignificant social and economic costs of environmental degradation.
If I had to live close to a seaport, as do the residents of Long Beach and Oakland, California, or Galveston, Texas, I would prefer to live near the California ports, where, unlike in Texas, the hundreds of container-pulling diesel trucks moving in and out of the ports are tightly regulated to limit emissions of deadly particulate matter.
TRR: Do you view the future of regulation in the United States with optimism? If so, what gives you hope for that future? If not, what do you see as the biggest challenges ahead?
Kagan: Despite serious short-run concerns about the current presidential administration’s hostility to regulation of many kinds, the political demand for regulation will not disappear. In a complex modern society, full of tightly coupled interdependencies and dynamic economic innovation, it is inevitable that fatal accidents, environmental disasters, and corruption scandals will recur. When they do, demands for explanations, accountability, and reform also will recur, and in their wake will come new regulations, demands for rejuvenation of regulatory agencies, and ideas for improvements. In that sense, my optimism about the future of regulation is tied to my pessimism about the recurrence of disasters, together with my sense that as long as techniques for preventing harm are imaginable and feasible, people will demand that governments should mandate the deployment of those techniques.
