UC Law SF International Law Review


An underlying ethos of American law is that an adversarial setting is a prerequisite for proper resolution of a dispute. But is that accurate? Comparative scholars have illustrated the diversity of methods available. In Adversarial Legalism, Robert Kagan considers the merits of these alternative systems. Although the book is not intended as a comprehensive agenda for reform, Kagan's message is clear: our procedures and methods for resolving disputes are a matter of choice, no matter how natural or entrenched they may appear to be. To the extent they do not serve us well, we should exercise our ability to make different choices. Adversarial Legalism is an important book that offers a fair and balanced account of what Kagan labels "adversarial legalism," but it has its flaws. This essay addresses the book's primary shortcoming: its failure to examine more closely the rich cultural variables the have produced, and continue to entrench, adversarial legalism. As a result, Kagan underestimates the difficulty of making different choices and fails to appreciate how such reforms must be pitched in America.