“Adversarial legalism” in the German system of industrial relations?

The US has a distinctive legal style, which Robert Kagan has called “adversarial legalism.” It is marked by a pattern of political decisionmaking and conflict resolution in which the courtrooms and the law are systematically exploited as political arenas for making and implementing political settlements and policy outlines. In this article it is argued that a “German way” of adversarial legalism is about to emerge in the German industrial relations system. Economic liberalization, the fragmentation and decentralization of lawmaking authority in the political sphere, and the common‐law‐like nature of German labor law have contributed to the appearance of a judicialized pattern of governance. Nonetheless, Germany is not converging on the “American way of law” and major differences are expected to persist in the years to come.     

Power to the legal professionals: Is there an Americanization of European law?

Twelve years ago, Robert Kagan asked “Should Europe worry about adversarial legalism?” He answered this question with a qualified “no,” and identified a number of sources of resistance to such a trend. More recently, he broadened the issue in this journal by asking whether European countries experience an “Americanization” of their legal systems. The articles in this Symposium on the Americanization of European Law all revisit that question. The present article introduces the topic, discusses the elements that make up adversarial legalism, and summarizes and compares the findings of the articles in the Symposium. The articles find an increase in one dimension of adversarial legalism, namely, more legalism, that is, more litigation, more formalism, and more verdicts interfering with politics, but hardly any increase in adversarialism. Tenacious pre‐existing national legal and political cultures and institutions resist a further move in the direction of American style adversarial legalism. The mix of more litigation, more legalism, and more politicization, overlaid on the pre‐existing hierarchic authority of courts and legal functionaries has, however, strengthened the societal and political power of the judiciary vis‐à‐vis other powers. A professional elite is increasingly making the political choices that in a democratic society ought to be made by democratic representatives. Perhaps Europe should worry about this.     

From corporatism to lawyocracy? On liberalization and juridification

In 1997 Robert Kagan questioned whether European countries had to fear the coming of American style adversarial legalism. He answered this question with a qualified “no.” Today we are no longer so sure the answer is “no,” even in a country that Kagan considered the antipole of US adversarial legalism, the Netherlands, traditionally characterized by informal and consensual conflict resolution. In the present article we chart a trend of increasing juridification and legalism, that is, more formal and legal conflict resolution, in the Netherlands between 1970 and 2008. The trend is related to major changes in economic governance institutions, which generated a shift from corporatism toward lawyocracy; from power of the associations of civil society toward power of courts, lawyers, and judges. Yet the newly dominant system of governance is modified and merged with elements of the old system, producing a specific Dutch version, which one could call “corporatist lawyocracy.” We identify two types of liberalization as major driving forces: social liberalization in the 1970s and 1980s, followed by economic liberalization in the subsequent decades. If one considers economic liberalization a product of neoliberal “Reaganomics,” the legal changes are in a way an “American export product,” although a different one than the lawyering styles of large international American law firms mentioned by Kelemen and Sibbitt in 2004.     

Adversarialism versus legalism: Juridification and litigation in corporate governance reform

Recent reforms of corporate governance law and related litigation rules in the US and in Germany indicate that reports of the spread of adversarial legalism are greatly exaggerated. Politics and legislation in the US since the mid‐1990s have turned quite decisively against shareholder litigation even as corporate governance and securities law reforms have expanded the role and scope of the regulatory state. Germany's extraordinary expansion of financial and corporate governance regulation since the early 1990s exemplifies juridification. Although these reforms included some liberalization of shareholder litigation rules, the changes reflected skepticism towards private litigation and imposed new constraints on the most prevalent forms of shareholder suits. Marketization of economic relations and the era of finance capitalism have produced far more legalism than adversarialism, more regulation than judicialization, and more ex ante transparency rules than ex post litigation remedies.     

Negotiated rulemaking in practice

Until recently, parties interested in rulemaking by federal agencies were forced to voice their views primarily through adversarial procedures. An alternative, negotiated rulemaking, was proposed by the Administrative Conference of the United States (ACUS) in 1982. Since then, negotiated rulemaking has been used four times by federal agencies. The four completed negotiations show that negotiated rulemaking permits affected interests to retain greater control over the content of agency rules, while ensuring fairness and balance. It also permits agencies to obtain a more accurate perception of the costs and benefits of policy alternatives than can be obtained from digesting voluminous records of testimonial and documentary evidence presented in adversarial hearings. This article summarizes the results of a recently completed report prepared by the author for the Administrative Conference. It reviews the genesis of negotiated rulemaking, presents a framework within which to understand dynamics of the negotiation process and related administrative law issues, and presents recommendations for future agency use of negotiated rulemaking recently adopted in substance by the Administrative Conference.     

Collaborative and adversarial analysis in environmental policy

This study examines two models of analysis used in attempts to resolve technically intensive policy disputes. In the adversarial form of analysis, groups opposing each other in a debate generate competing technical analyses to support their clashing policy arguments. In the collaborative form of analysis, all the groups involved in a debate work together to build a single, mutually acceptable technical analysis of the issues in question. The practical implications of these contrasting forms of analysis are explored in the context of two recent policy debates over the environmental management of the marine oil trade in Alaska. In the first case, adversarial analysis is found to cause a stalemate in the policy process. In the second case, collaborative analysis is found to facilitate the resolution of a policy dispute. In both cases, it is also found that analysis and politics interact in shaping the content of the final policy decisions.     

Introduction to Special Issue: Think Tanks in the Nordic Countries

Think tanks in the Nordic countries are now frequently referred to in national media, among decision-makers as well as in academic communities. Based on the literature on think tanks, a consensual and adversarial perspective on their development is advanced. In support of a consensual perspective, the special issue shows that a number of policy think tanks, which play consensual roles in different policy niches, have emerged in the Nordic countries in recent decades. In support of an adversarial perspective, think tank landscapes in the Nordic countries now include advocacy think tanks from both sides of the political spectrum. The mixed think tank landscapes found in the Nordic countries do not constitute a break with consensual policy-making traditions. Nevertheless, a number of privately funded think tanks, which have increased competition for funding, media visibility and political influence, have supplemented established publicly funded think tanks in particular in Scandinavia.     

The Federal Judiciary and Northern School Desegregation: Law, Politics, and Judicial Management

Using a three-tier analysis, this article examines how the interplayof political and legal factors has influenced the developmentof school desegregation policy in Michigan and Ohio. The authorconcludes, among other things, that the district courts, theSixth Circuit Court of Appeals, and the U.S. Supreme Court aresensitive to the influences of politics and legalism, but thatthe responses of the three kinds of federal courts are different.Recognizing a constitutional imperative to eradicate segregation,district courts have emphasized the participation of electedofficials and affected community groups in the remedial process.Because of isolation and low visibility, the Sixth Circuit hastended to pursue a more tenacious policy course than eitherthe district court or the Supreme Court. Meanwhile, the U.S.Supreme Court has generally championed the cause of local officialsby attempting to balance the interest of eliminating segregationwith that of protecting the integrity of state and local decisionmakers.     

The narrative properties of ideology: the adversarial turn and climate skepticism in the USA

A central concern in policy studies is understanding how multiple, contending groups in society interact, deliberate, and forge agreements over policy issues. Often, public discourse turns from engagement into impasse, as in the fractured politics of climate policy in the USA. Existing theories are unclear about how such an “adversarial turn” develops. We theorize that an important aspect of the adversarial turn is the evolution of a group’s narrative into what can be understood as an ideology, the formation of which is observable through certain textual-linguistic properties. Analysis “of” these narrative properties elucidates the role of narrative in fostering (1) coalescence around a group ideology, and (2) group isolation and isolation of ideological coalitions from others’ influence. By examining a climate skeptical narrative, we demonstrate how to analyze ideological properties of narrative, and illustrate the role of ideological narratives in galvanizing and, subsequently, isolating groups in society. We end the piece with a reflection on further issues suggested by the narrative analysis, such as the possibility that climate skepticism is founded upon a more “genetic” meta-narrative that has roots in social issues far removed from climate, which means efforts at better communicating climate change science may not suffice to support action on climate change.     

State Traditions and Comprehensive Business Associations: A Comparative Structural Analysis

Recent studies calling for a more disaggregated approach to the study of the state risk rejecting those conceptual tools such as policy style and state tradition that have been developed for studying macropolitical institutions. Taking as a point of departure Dyson's attempt to relate state traditions and modes of interest-group politics, it is demonstrated that a certain symmetry exists between different types of states and the structures of systems of comprehensive business associations. Specifically, France is shown to have a dualistic system corresponding to its dualist polity, West Germany a system specialized by policy area corresponding to its accommodative polity, and Britain, Canada and the US to have competitive, pluralist systems consistent with their adversarial polities. Such correspondence supports trying to treat as a variable the relationship between macropolitical traditions or policy styles and sectoral policy communities.     

Federalism and nuclear waste disposal: The struggle over shared decision making

Traditionally the domain of federal agencies, authority to select sites for the disposal of commercial high-level nuclear wastes has recently been expanded to include a role for host states. State opposition to earlier siting efforts had demonstrated the dificulties federal agencies faced in resolving conflict between the local population bearing the costs and the dispersed population receiving the benefits. The new model defines the agency and the state as adversarial representatives of these competing interests. An outstanding weakness, however, is that it does not clearly specify who should speak for the state, and may actually promote intrastate conflict. The adversarial approach does not provide a generic solution to the problem of federalism, but it may prove useful at the state level for selecting disposal sites for low-level radioactive wastes and hazardous chemical wastes.     

The Role of Policy Labs in Policy Experiment and Knowledge Transfer: A Comparison across the UK,Denmark, and Singapore

Abstract

Policy labs have been increasingly used to generate scientific evidence and political momentum to boost policy experiments, but our understanding of the conditions for knowledge creation and transfer through policy experiments in the labs is scarce. This paper compares the UK’s Cabinet Office’s Behavioral Insights Team (BIT), Denmark’s the Danish MindLab, and Singapore’s the Human Experience Lab (THE Lab) to identify their similarities and differences in fostering policy experiment and knowledge transfer. It is found that BIT as the “Nudge Unit” is keen on bringing in rigorous scientific evidence to advocate effective albeit controversial policies, critical to its survival and influence in an adversarial political circumstance. MindLab takes more initiative to co-create and run projects together with agencies and organizations. THE Lab is dedicated to gleaning ethnographic insights from various stakeholders to support design thinking in policy implementation. These discernable differences can be attributed to their different political regimes and policy environments, which suggest workable avenues for policy labs in other countries.     

Structural Power and Public Policy: A Signaling Model of Business Lobbying in Democratic Capitalism

This paper develops a signaling model of corporate lobbying in democratic capitalist societies to analyze the conditions that lead to a powerful political position of business. Proceeding from the traditional dichotomy of structural economic determinants versus business' political action, our model predicts the conditions under which elected political decisionmakers modify their policy pledges to accommodate business' political preferences, or override business' lobbying messages and honor their pledges. Our results show that the structural power of business over public policy is contingent on two variables: the size of reputation costs of business in relation to its material costs of lobbying; and the ratio of the policymaker's reputation constraints from policy commitments and campaign pledges to the electoral costs arising from adverse effects of policy. We evaluate our model using case studies of business lobbying on environmental and financial services regulation in Britain and Germany.     

Multi-stakeholder public policy and governance in China: an analysis

In this article, public policy is put into a multi-stakeholder rather than adversarial perspective: we argue that there is a role for multi-stakeholder involvement in both the development and implementation of public policy; these are separate processes that can involve different patterns of stakeholder involvement (stakeholders have different skills and levels of interest in public policy) in either one or both the development and implementation phases. We need new models, approaches and examples of such multi-stakeholder public policy, and in this Special Issue, we focus on China, where such research is only slowly emerging. We present and analyse six papers that fall naturally into three categories: (1) corporate social responsiveness and societal relationships; (2) public affairs (particularly reputation management) and citizen involvement; and (3) public-management-oriented, data-based analyses. These articles, taken together, increase our understanding of multi-stakeholder research and practice, but equally as important, they give us insights into how Chinese public policy academics research and report public policy. This window into academic research and thinking offers us an opportunity to expand and deepen our understanding of public policy and its implications for public affairs in China. Copyright © 2014 John Wiley & Sons, Ltd.     

Mediating science-intensive policy disputes

Public policy disputes involving complex scientific issues usually entail conflicts not only over those scientific issues, but also over the distribution of gains and losses. The presence of scientific or technical dimensions to a dispute should not be allowed to mask underlying distributional considerations. On the other hand, science-intensive disputes require special attention. Merely resolving distributional conflicts without incorporating the best scientific judgment will produce unwise and potentially dangerous results. The usual adversarial approach that characterizes the handling of such disputes by agencies and courts is less than ideal for creating an understanding of scientific evidence or the resolution of scientific differences. A process of mediation, already applied in a number of significant cases, offers strong promise as a superior approach.     

Purchasing Policy Advice: The Limits to Contracting Out

Throughout the OECD, governments have been contracting out an increasing range of goods and services. Against this background, this article outlines the case for, and assesses the merits of, placing the purchase of governmental policy advice on a more competitive basis. Two options are given particular attention: first, the creation of an internal market for policy advice within the public sector under which departments and other government agencies would tender to supply specific policy outputs; and second, a more radical option under which public and private sector organizations would compete for the contracts to supply governmental policy advice. Drawing on the insights of the new institutional economics, it is argued that neither option is likely to enhance the efficiency or effectiveness with which policy advice is produced, whether under conditions of short-term or long-term contracting. This is due to the likelihood of: only partial contestability (due, among other things, to asset specificity in the form of transaction-specific expertise and trust); a greater risk of opportunistic behavior by the suppliers of advice (and also, under some conditions, by the purchasers); higher agency costs and transaction costs; and greater problems with respect to horizontal and vertical policy coordination. Such considerations suggest that the widespread reliance of governments on relatively permanent advisory institutions and in-house expertise can be explained and justified on the same theoretical grounds that have prompted the contracting out of other publicly-funded goods and services.     

Policy Formulation: Where Ignorant Armies Clash by Night

This article argues that many of the shortcomings generally ascribed to policy analysis can be attributed to the intractable nature of the problems being addressed. That is, public policy issues are inherently difficult, resistant to resolution and fully loaded with significant costs. Those costs can easily render a potential policy solution helpless or perhaps even counterproductive, despite the best-conceived and best-intended plans of its proponents. A policy design perspective can help identify some of the downstream dilemmas and possible help alleviate them. However, like most policy approaches, policy design must be used with careful circumspection, else its pitfalls overwhelm its promises.     

The impact of different government units in the regulation of the workplace environment

This study examines the issue of whether or not state and federal job safety agencies provide the same levels of public output. Tests are conducted on the hypothesis that state takeover of regulation from the federal program serves to reduce the costs of firms. These costs are comprised of two components: the penalties for noncompliance and the uncertainty costs of regulation. The public policy implication that is drawn from these tests is that it matters to firms which government unit regulates them.     

Partisan politics,welfare states,and environmental policy outputs in the OECD countries, 1975–2005

Building on the burgeoning literature on the association between the welfare state and the environmental state, this study empirically examines how the politics of the former has affected the development of the latter. We suggest that the size of the welfare state shapes the calculus of environmental policy costs by partisan governments. A generous welfare state lowers the costs perceived by the left‐wing government, as large redistributive spending allows the government to mitigate the adverse impact of the new environmental policy on its core supporters, industrial workers. A generous welfare state also implies diminished marginal political returns from additional welfare commitment by the left‐wing government, which lowers the opportunity costs of environmental policy expansion. To the contrary, because of lower overall regulatory and taxation pressure, a small welfare state reduces the costs of environmental policy expansion as perceived by a right‐wing government. Our theoretical narrative is supported in a dynamic panel data analysis of environmental policy outputs in 25 Organisation for Economic Co‐operation and Development member states during the period 1975–2005.     

Rent-seeking in natural resource quota allocations

This paper examines the incentives for rent-seeking in the allocation of natural resource quotas to competing user groups by political bodies. The political body has discretion in making the allocation, and competing user groups rent-seek to influence the allocation. We investigate ways in which the governmental body can affect the behavior of the players by setting the ground rules for the competition. A political body can affect an allocatively (Pareto) efficient outcome by choosing an appropriate default (pre rent-seeking) policy. Surprisingly, an allocatively efficient default policy is unlikely to minimize social costs. However, winner-take-all default policies are likely to maximize, not minimize, rent-seeking. A competitive post-allocation market reduces rent-seeking, but is not, either itself or in combination with an efficient default policy, capable of minimizing social costs. However, forcing winners in political redistributions to fully compensate losers both lowers the rent-seeking levels relative to a potential compensation criterion and, when used together with an efficient default policy, is capable of obtaining the first-best solution of an allocatively efficient allocation with zero rent-seeking.