On Surveying the Whole Legal Forest

Abstract

I am always amazed by newspaper reports of the way that geologists and space scientists draw complex conclusions about the origin or nature of a planet from data sent back by a probe of one tiny part of the planet's surface. They seem to have a lot of confidence in their underlying theories. The same is not true for sociolegal scholars. We don't have full-fledged theories about how legal systems actually work, and hence it seems risky to make big generalizations about a system as a whole based on a study of one or two legal institutions or processes. Making generalizations about the "law in action" for whole legal systems is especially risky if the subject is the United States, with its 50 different state legal systems, from Mississippi to Montana to Massachusetts, and with its proliferation of different kinds of courts, law enforcement bodies, police departments, administrative tribunals, and regulatory agencies, state, federal and local. Small wonder that most empirical sociolegal scholarship is relatively narrowly focused on specific legal policy areas and processes. While these case studies are immensely valuable, occasionally it seems worthwhile to use the scholarly close-ups of particular clumps of trees to draw some wide-angle conclusions, however tentative, about the shape and dynamics of the legal forest. That, however quixotic the effort, is what I sought to do in Adversarial Legalism: The American Way of Law (hereinafter AL). But just as Don Quixote needed the skeptical realism of Sancho Panza, the essays on AL in this issue, paying close attention to text, empirical detail, and analytic precision, serve as a reminder of the pitfalls attending the quest for generality. Yet I am not quite willing to don the Quixote costume. In this essay I will argue that AL, even if a bit ambitious, is reasonably realistic, and that the questions raised by the other essays raise meaningful but not Robert A. Kagan is professor of political science and law, University of California, Berkeley. Many thanks to David Johnson for organizing the Law and Society Association panel that led to this exchange.

The Effect of Legal Environment on Innovation Performance of Collaborative External Knowledge Strategies.

“…France and Germany) than in common law or more adversarial systems (e.g. the U.S.) (Djankov et al, 2003;Kagan, 2003). Recourse to the legal system for formal dispute resolution is likely to be more pervasive with less legal formalism than high.…”

“…Conversely, in economies with low levels of legal formalism, transaction costs are likely to be higher for non-equity strategies, reflecting higher costs of litigation associated with dominant adversarial legal norms (Kagan, 2003). By participating in equity arrangements, firms will increase their coordination costs but reduce their transaction cost of external knowledge transfer.…”

“…Collaborative strategies, however, offer differing degrees of protection against the risk of appropriation and contract enforcement that are likely to vary across legal environments. Firms are more likely to use the courts for formal dispute resolution in countries with less bureaucratic and more adversarial legal systems (Kagan, 2003) and these firms are more likely to enter collaborative relationships underpinned by legal contracts (Hollingsworth & Streeck, 1994).…”