This essay was written for the Law of Abundance project at the Johns Hopkins University Center for Economy and Society.
For decades liberals have embraced lawsuits, legal rights and judicial policymaking as means for creating social change and holding powerful interests to account, but in recent years second thoughts seem to be proliferating. Abundance liberals from Ezra Klein to Jen Pahlka have embraced Nicholas Bagley’s argument in “The Procedure Fetish” (2019) that the accretion of rules backed by liberals to make executive branch policymaking more open, transparent and accountable has become a major barrier to progressive change.
Bagley’s seminal article focused on the ways in which liberals’ unexamined dedication to “proceduralism” has handicapped state capacity. His examples mainly come from his specialty, administrative law, where major new initiatives must run a gauntlet of procedural hurdles, many of them erected by liberals, before they can take effect. As Bagley notes, there has long been a tradition in law and political science that has examined the effects of those hurdles, and critiqued them, but their work is “absent entirely from the political conversation and relegated to the sidelines of the academic debate” (Bagley 2019: 357).
This is a tradition of research that ranges far beyond administrative law to examine the myriad ways in which lawsuits have come to be a central aspect of American politics and public policy. The research raises questions about how the ambitions of abundance liberals can be realized without rethinking the role of litigation in American life and politics, and considering what could replace it. Litigation, this research suggests, is not simply a tool, a policy mechanism that can be turned on or off; it embodies an organization of political authority that is politically attractive to Americans–and self-reinforcing. Turning away from litigation may require re-legitimating and re-empowering other forms of authority.
A classic example of this long tradition of procedural skepticism is Robert A. Kagan’s study of the long and contentious struggle over dredging the Oakland Harbor (1991, 2019), which illustrates why litigation can be so troublesome for a “liberalism that builds,” and why reforming it can be so difficult. The Port of Oakland began in the 1970s to plan for dredging its harbor to keep it competitive with other ports that could accommodate larger, deeper ships. After Congress authorized the project in 1986, the Army Corps of Engineers completed an Environmental Impact Statement that included a plan to dump the dredged material in San Francisco Bay, but when concerns were raised, the Port proposed to move the material further out, to a location along the California coast. An environmental group sued to stop this second plan, arguing that the dredged material should be brought 50 miles out to sea, a more costly site. The Port, the Corps, and the EPA negotiated a settlement with environmental and fishing groups to resolve the lawsuit, but the new plan they agreed to, which moved most of the dredged material to a site 10 miles off the coast, was the subject of yet another lawsuit by a fishing group. A federal court rejected that lawsuit, but then another group using an entirely different legal argument sued in state court, again halting the project. The Port then created a new plan in which the bulk of the dredged material would be dumped in the Sacramento–San Joaquin River Delta, but a local water agency challenged this plan in state court as well. After that legal challenge was turned back, the Port in the early 1990s halted the whole project, believing the escalating cost of disposing the dredged material threatened to make the entire effort nonviable.
Finally, in 1992, the Port was eventually allowed to go forward with a plan that included dumping some of the dredged material right where it had first proposed, in San Francisco Bay.
After nine years of litigation and delay, the project was completed in 1995. Kagan (2019:34) concludes:
Month after month, regulatory officials, scientists, and lawyers, arguing first in one legal forum, then in another, debated the propriety of decision-making procedures, the adequacy of sediment samples and tests for chemical contamination, and the reliability of environmental impact models. No proceeding produced any definitive finding that the proposed disposal plans were environmentally dangerous. . . For years, no court or agency was able to authoritatively designate an environmentally acceptable, economically sensible alternative. . .When one agency found a plan legally acceptable, another would disagree. When one court found a plan legally acceptable, another overturned it.
The root problem in the dredging fight, Kagan’s study demonstrates, was a lack of legitimate governmental authority. In other nations, and perhaps at other times in American history, one could imagine such a conflict being resolved by an executive branch agency backed by elected officials, or through legislative bargaining among all the affected interests. In the dredging fight, though, there was no single political, bureaucratic, or expert body trusted and empowered to resolve the matter. “Adversarial legalism” is the term Kagan coined for the decentralized form of authority that instead prevailed. Kagan compared this to “bureaucratic legalism,” the more familiar (Weberian) centralized hierarchy in which disinterested civil servants neutrally enforce rules. In adversarial legalism, civil servants are sidelined; it is the individuals and groups that a rule affects who can, if they have the resources and inclination, start the process by bringing claims against other parties. The litigants can argue not just about how rules should apply to their dispute, but about the meaning, justice and legality of the rules themselves—and also about the application and fairness of the procedural rules used to resolve the substantive questions. The decision makers—state and federal judges (and all the scattered state and federal agencies that also played a role)–are not, like Weber’s bureaucrats, tightly bound to a higher authority. Nor are there typically any limits on the number of claims that can be made; the process has no fixed ending point.
Where other forms of governmental authority are typically centralized, public, and relatively stable, adversarial legal authority is decentralized, privatized, and fluid. These distinctive features make its effects double-sided. Adversarial legalism is theoretically open to all, including those disadvantaged in other facets of the political process, but that also makes it potentially costly both in time and money; decisions can drag on and on. Adversarial legalism is more flexible and thus more adaptable to new social concerns and new problems, but also more uncertain and unpredictable, which makes organizational planning—notably the planning of major infrastructure projects—exceedingly difficult. At its worst, adversarial legalism frustrates both potential plaintiffs, who struggle to find the resources required to bring claims, and defendants, who feel buffeted by a process so uncertain and arduous.
An array of political scientists and law professors have critically examined adversarial legalism as a policymaking mechanism, focusing on its decentralization (Melnick 1983), privileging of litigants and judges over political leaders and policy experts (Horowitz 1977), empowerment of “repeat player” litigators (Galanter 1974; Talesh 2013), relative lack of capacity for policy analysis, and reduction of complex social problems to individual dyadic disputes (Fuller 1978; Barnes & Burke 2015). Their research documents the costs, complexity and unpredictability of adversarial legalism in an array of policy fields such as education (Dunn 2008), the environment (Melnick 1983; Hoberg 1993; Kagan & Axelrad 2000), immigration (Hamlin 2014), gender equity (Melnick 2018), tobacco regulation (Derthick 2012), personal injury (Schuck 1986, Tanese 1990; Carroll et al, 2005), welfare (Melnick 1994), corporate governance (Cioffi 2009), patents, debt collection and labor law (Kagan & Axelrad 2000), nuclear power plant licensing (Boyle 1998), and many others (Kagan 2019, Table 1: 8)
In his comparative research, Kagan contrasted American adversarial legalism with other forms of authority he argued often more effectively addressed social problems (Kagan & Axelrad 2000; Kagan 2019). Kagan’s comparisons to Western European governments in environmental and labor policy illustrate why American public policy is so often shaped by adversarial legalism. In Western Europe, policymaking in these fields is often made through negotiations among “peak” associations; representatives of labor, business, and government come together to negotiate a solution that parliaments ratify. This corporatist style of policymaking is fostered in parliamentary democracies; in those systems, policymaking is centralized within the majority coalition that dominates government.
By contrast, the decentralization of American government, with its many “veto points,” generates a more pluralistic system of interest representation in which smaller, newer, and more dissident groups have a voice. In the United States, there are no peak associations that have the authority to speak for an entire constituency; within each broad sector, be it labor, business, or the environment, there are competing interest groups that come from different circumstances and have different philosophies. There is also no forum in which all the affected interests can come together and guarantee a final settlement of their differences. In adversarial legalism, the fact that leading groups within some sector have signed off on a compromise carries no legal weight; dissident groups are allowed to challenge the bargain, and even when they don’t prevail, as in the Oakland dredging saga, string out the resolution of the matter. The result, James Q. Wilson once wrote, resembles a “barroom brawl” in which “no referee is in charge, and the fight lasts not for a fixed number of rounds but indefinitely or until someone drops from exhaustion” (Wilson 1989: 299-300).
Martin Shapiro’s Who Guards the Guardians? (1988) tells a parallel story in which adversarial legalism grew out of the declining legitimacy of both elected officeholders and experts in the executive branch. The New Deal era, Shapiro argues, had an ideal of government by “bureaucratic expertise under presidential control” (Shapiro 1988: 137-138) and as a result judicial deference to executive branch agencies was the norm. But this ideal began to tarnish starting in the 1950s. Concerns grew that executive branch agencies had been captured by the groups they were supposed to regulate, and that experts in those agencies suffered from “professional deformation”: The poultry expert in the Department of Agriculture and the aeronautical engineer in the FAA, it was thought, had come to believe “what is good for chicken farmers or the aerospace industry necessarily is also good for the American people” (Shapiro 1988: 66).
One consequence of this growing distrust of executive branch agencies was a new generation of regulatory statutes in the 1960s and 1970s designed not merely to check industry but the regulators as well, through mechanisms such as detailed statutory mandates, with deadlines, that invited lawsuits from public interest groups dissatisfied with the pace and vigor of agency implementation. Another was a greater tendency of judges, beginning in the 1960s, to intervene more extensively in executive agency policymaking processes. They required agencies to respond in much greater detail to criticisms of the policy choices they were making, and to overturn policy choices judges deemed insufficiently defended. The result in high-profile areas such as environmental and immigration policy is an ongoing adversarial legal struggle that in many respects parallels Kagan’s dredging study—a bunch of barroom brawls.
Most contested agency actions, Shapiro argues, involve complex policy disputes that combine challenging scientific questions (what level of a chemical is safe? How many accidents will a regulation stop?) with value questions (how much is saving a life worth?) that have no straightforward, apolitical answers. Mixed in are difficult questions about how to interpret the many ambiguities in statutes that give agencies their powers. Agencies, Shapiro observes, could admit that their policy and statutory interpretation choices are uncertain, and that they have been “heavily influenced by the political persuasions of those who won the last election,” but in the administrative law that has been built since the 1960s, these truths are unacceptable. “So instead of telling the truth, agencies can lie; this is mostly what they do these days,” Shapiro writes (1988: 151).
The policy choices agencies make, Shapiro argues, are matters of prudence, and judges have no particular claim to greater prudence than the elected officeholders in Congress and the presidency that together appoint the officials who lead the agencies and write the statutes that give agencies their powers. “In a democracy, if policy decisions cannot be arrived at ‘scientifically,’ how else would we want to arrive at them by politics,” Shapiro writes. “If policy choices must be uncertain, and therefore, should be prudent, it follows that in a democracy they ought to be political.” (1988: 142)
Relaxing adversarial legalism in administrative law, however, would require accepting the authority of executive branch agencies to exercise political judgment. In recent years, the Supreme Court has moved in the opposite direction, becoming avowedly less deferential to agencies (a turn in doctrine that liberals might find a source of comfort if consistently applied to the Trump administration). While the U.S has islands of unchecked authority in public decision-making—for example, the expert analysis of the National Transportation Safety Board regarding the causes of airplane accidents or the Federal Reserve’s setting of interest rates—this is far from the norm. In the United States, unchecked authority, whether of executive branch agencies like the EPA, or local cops on the street, evokes profound concern from both the left and the right. That makes the inevitable discretion that executive branch agencies possess seem troubling, and adversarial legalism the natural remedy.
The proceduralism that Bagley observed in administrative law, then, has even deeper and more extensive political roots than his article suggests. It should not be surprising that while lawsuits and litigiousness are regularly denounced in the media and popular culture (Haltom & McCann 2004; Barnes & Hevron 2018), and an array of studies have demonstrated the downsides of adversarial legalism, fundamental reform has proven difficult (Burke 2002; Barnes 2011; Burbank & Farhang 2017; Kagan 2019). The political power of adversarial legalism lies precisely in what it displaces: other, more centralized forms of authority, expert, bureaucratic and political, that Americans distrust. A “liberalism that builds” must grapple with what makes adversarial legalism so tenacious, its decentralization and participatory veneer. Abundance liberals must find other ways to generate authority that people can accept. This is the overriding political challenge for those who seek to reform the use of litigation in American public policy.
Thomas Burke is Ralph Emerson and Alice Freeman Palmer Professor of Political Science at Wellesley College. Jeb Barnes is Professor of Political Science at the University of Southern California.