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Kingdom, and in the Netherlands. Overall, he found striking contrasts among the regulatory settings from the perspective
of "B Corp." The general finding also mirrored the predictions of Kagan's theory. Namely that U. S.
regulation was more prescriptive, more costly, and caused delay. In addition, he argues that these added costs
and delay did not come with added benefits to the public in the form of regulatory protection when compared with
other regulatory settings. Because of the costs and delays in approval of remediation, there is also postponement
"of the protections that the cleanup is meant to achieve" (p. 104).
Welles and Engel (Chapter 5) examine the permit process for the siting of solid waste landfills in California,
Pennsylvania, the United Kingdom, and the Netherlands. In comparison to the U. K. and the Netherlands, California
permitting was the most complex and strictest. However, they argue that such restrictions might result in great
public protection, education, and public participation. On the other hand, Pennsylvania was less adversarial than
California by relying on an administrative system for appeals that was much less complex and more routine. Although
Pennsylvania legal costs were lower than in California, they were still higher than in the other countries. The
key point here is their argument that regulatory costs increased with the degree of decentralization and increased
opportunities for legal challenges.
The chapter by Dwyer, Brooks, and Marco (Chapter 6) examines four cases from the U. S. and Germany to study
regulatory procedures for handling air pollution permits in auto manufacturing sites. Despite that Germany and
the United States have a similar federal system, very large differences in the regulatory process made the U. S.
process more prescriptive, more detailed, and more stringent. In regulating volatile organic compounds, the U.
S. system provided greater public participation, but was slower, had more conflict, and delayed the installation
of new pollution controls.
Chapter 7 begins the section of cases on legal rights and litigation. Laura Beth Nielsen examines employment termination
practices in the United States and Canada. Her findings are consistent with the adversarial legalism hypotheses
in that Canada's employment protection is broader than in the U. S. and that there are fewer legal disputes. Although
there is more mobilization of law in the United States, Nielsen argues that Canada spends more money on severance
packages and probation rather than termination. These costs go to the employee rather than to costs for legal efforts.
Ruhlin examines credit card debt collection regulation in the United States and Germany (Chapter 8). In this area
of regulation, he finds that the U. S. system has higher costs and uncertainty, more access to bankruptcy protection,
and longer delay in the formal collection of debts that in Germany. Germany's system was found to be less formal,
more uniform, and that it was easier for banks to press their claims before bankruptcy. The norms in Germany were
much more associated with responsibility over debts than in the United States with its protection of bankruptcy.
Somaya puts forth a case study of patent protection in the United States, Europe, and Japan (Chapter 9). Unlike
the previous case studies, Somaya asserts that the U. S. system provides more protection of patent law to companies
and that less consistent practices abroad delayed products getting to market. The U. S. system
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encouraged cooperation, not contestation, but led to court enforcement later on in some cases. Most interesting
was that there was strong pressure for international convergence of patent law because of the lobbying of multinational
corporations. Kagan, in chapter 12, discusses these findings and argues that the U. S. system may have worked
better because the patent regulatory system is more centralized than other regulatory schemes in the United States.
Chapters 10 and 11 present the last cases of the book by focusing on product safety regulations. Chapter 10, by
Kraus, argues that in the licensing of biologic products the European system is much more complex, legalistic,
and stringent than in the United States. The European process was also slower and more costly due to the requiring
of more tests and tighter tolerances. However, Kraus notes that there has been a movement toward convergence of
regulation in Europe and the United States that may overtime bring Europe in line with the United States. Although
the findings of this case are contrary to those of other cases, Kagan again notes that the sort of system discussed
here is concentrated in the U. S. into a single Washington office. Thus, it mirrors more of bureaucratic enforcement
than
the decentralized legalistic system found throughout America.
Chapter 11 also provides some contrary evidence to that of the book. Johnson, Fujie, and Aalders examine chemical
notification laws in the United States, Japan, and the European Union. Unlike the other cases in this book, this
study is based on interviews of more than one chemical company rather than a single multinational case. They find
that the U. S. system is more legalistic and adversarial in design, but is more flexible and efficient than the
other systems. In general, the U. S. system was viewed as less costly and faster, but more apt to impose legalistic
fines. In Europe and Japan, they found weaker enforcement provisions. Again, Kagan notes these findings as contrary
to his thesis, but argues that the regulatory task is different in the U. S. system and that the system in this
area is much more concentrated in a single regulatory bureau in Washington, D.C.
Kagan ends the book in chapter 12, with a fine summary of the cases and how that they fit into the overall picture
of his theory of adversarial legalism. He argues that "governance in the United States is pervaded by adversarial
legalism" and the cases, for the most part, demonstrate this conclusion (p. 406). The book is clear in its
presentation and is honest in its flaws. Many of the issues that I raise below are addressed by the authors, but
merit some consideration and discussion. One weakness is that there is no real quantitative data presented to
assess whether the differences in legal systems provided more regulatory benefits. Some of the
cases argued this from the information obtained from interviews and the case study of the companies, but this still
fell short of a study that may be designed to demonstrate this impact. Indeed, the jury is still out as to whether
American legalism leads to the deterrence of potential polluters or whether American tort law leads to better safety
provisions than in other legal regulatory systems. In addition, future studies might quantitatively assess the
legal costs of regulation to multinational companies in two or more regulatory settings. Although it's focus is
not legal costs to multinational corporations, Charles Epp's (2000) study on administrative
legal costs to cities is a nice example of examining legal costs. Beyond this, studies might examine how much
delay is found in
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different legal institutions and for what reasons such delay exists.
Kagan also acknowledges that the cases are not a representative sample of industry types and that most of the industries
lean toward environmental regulation issues. In addition, multinational corporations are larger and not like most
other businesses and companies. They may prefer some regulatory schemes to others because the regimes may be beneficial
in excluding other companies from the market. Although this is not a crucial point, it is worth exploring other
industries to assess views of business toward regulation in the global economy. For example, telecom, computer,
and information technology regulation may be interesting given that many
companies in these areas are global in reach.
Finally, some cases found that American adversarial legalism could provide more avenues of public participation
in comparison to more bureaucratic legal systems. As Kagan notes, this is culturally rooted in American law and
in the notion of American pluralism and capitalism. On this point, Jerold Auerbach's (1983) book, JUSTICE WITHOUT
LAW?, enlightens us some on why American's turn to the adversarial legal system and not so much other forms of
dispute resolution. It is rooted in our competitive culture and in the individualistic roots of American society.
Such "roots" lead American's to challenge systems that promote homogenous cultural norms, to distrust
power and bureaucracy, and to allow individuals to have the opportunity to openly challenge norms and rules that
violate rights and
liberties. These benefits certainly enlarge costs of regulation, but may be worth it when considering the costs
of movement towards bureaucratic structures that promote cooperation within norms and less ability to openly challenge
them. On the other hand, there has been a movement towards the use of ADR in the regulatory environments of the
U. S. For example, the U. S. Institute for Environmental Conflict Resolution, negotiated rulemaking, and the use
of ombudsmen and mediation may all be examples of a movement toward less adversarial regulatory law in America.
Future research should explore this movement more and whether or not this is a convergence of sorts of American
regulatory style with other countries.
To conclude, the book was most impressive in its clear presentation of the arguments and the forthright and honest
application of the results to the theory. Kagan's emphasis on the exploratory nature of the results, the weaknesses
of the case method, and his upfront presentation of the exceptions to the theory, promote a "trust" with
the reader that only adds to the quality of the argument. This book, in a good way, raises more questions than
it answers and gives the reader much to chew on as she ponders future research in this area. That, in my mind,
is the mark of a successful book.
REFERENCES:
Auerbach, Jerold S. 1983. JUSTICE WITHOUT LAW? RESOLVING DISPUTES WITHOUT LAWYERS. New York: Oxford University
Press.
Epp, Charles R. 2000. "Exploring the Costs of Administrative Legalization: City Expenditures on Legal Services,
1960-1995." LAW AND SOCIETY REVIEW 34:
407-430.
Kagan, Robert A. 2001. ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW. Cambridge: Harvard University Press.
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Copyright 2002 by the author, Roger E. Hartley.