Beyond Compare? Criticizing "The American Way of Law"

Abstract

The suggestion that something is rotten with law in America is not in itself novel; indeed it could be said that dissatisfaction with law is itself a constant of American legal culture. Popular distaste for lawyers is l o n g standing, and academic concern with over reliance on law would fill a large library. In the past, the problems raised have ranged from law's effects on "community" solidarity to the consequences of its costs and delays on American competitiveness in a globalized economy. Recent critiques range from neoliberal or libertarian pleas for a return to "common sense" (Howard 1996) to postmodernist attacks on law as an aspect of the irrationality of modernist rationality (Campos 2000). Bob Kagan's contribution to this genre is, nonetheless, in many respects original and provocative. These recent critics, like many others, see bureaucratic rule making and law as one seamless web. Kagan, on the other hand, wants to save both bureaucratic and professional forms of judicial rule making from exasperating legal challenge. What is more, he believes that by looking abroad to other modern societies he can show that this is really possible. There have of course been many other valuable attempts to study American law comparatively, especially as contrasted with Japan and, to a lesser extent, continental Europe.