 Thank you very much Neil. Thank you, Australia National University for inviting me and affording me the opportunity to see this beautiful campus, beautiful city, and to enjoy the stimulation of interest in college in Regnet, where I've been housed. The topic of my talk today is political dynamics of systemic legal change. What do I mean by that? I've been interested for some years in the challenge of trying to figure out what is distinctive about the national legal system and about why national legal systems differ and the political dynamics of legal change. That's a rather daunting, almost quixotic thing to do. It's a challenge because of the immense variety of laws within a single legal system and because of the constant incremental changes within a legal system. But fungely ahead, I wrote a book on that subject called Adversarial Legalism, the American Way of Law. It was published in 2001. It argues that the United States has a distinctive legal style. It tries to show that compared to other countries, the American legal style is particularly legalistic and adversarial. It's more punitive. It's more costly. It's more open to political influence, more open to a broad range of legal claims, and I labeled that style adversarial legalism. And the consequence of that is that America's way of governing itself tends to be more permeated by law and by legal conflict and by litigation. There's more frequent use of courts to obtain political and policy change, more political conflict over courts and law. It penetrates into daily life in government and commerce more often. That book was published 11 years ago. So my question today is what about now have global pressures for convergence in the last 10, 15 years reduce the cross-national differences in that I described in my book. Is adversarial legalism in the United States moderating? Has it faded or has it grown? Are the legal systems of other countries becoming more like that in the United States? I only have time to address some of that today because I'm going to concentrate on developments in the United States. So here's a quick summary of what I'm going to say. I'll argue that in the last two decades, United States has seen the rise of a methodically constructed, well-funded, conservative legal movement in a broader conservative political movement and together they have eroded the cultural consensus that underlay earlier growth in the American regulatory state and adversarial legalism. Adversarial legalism hasn't gone away, but it's now politically controversial. It's politically contested and its political valence has shifted. It's more often used now, and it is often used now to promote conservative values as opposed to more egalitarian values. Moreover, in some ways other legal systems have come to have more features of American adversarial legalism in the last decade. More law, more litigation, more use of ports to decide important political and policy issues. And that narrows the differences a bit. But I'll argue that American legal exceptionalism, though not quite so exceptional as it was, really persists and is likely to persist in the future. So first let me talk about what I mean by adversarial legalism. Across many areas of law, across many spheres of public policy, American methods of making and implementing policy and resolving disputes tend to be more legalistic than their counterparts in other rich democracies. By legalistic, I mean that legal rules in the United States are unusually detailed, prescriptive and complex. Legal conflict is more common. Legal violations elicit heavier penalties in criminal cases, civil cases, regulatory enforcement alike. Legal claims, legal conflict and concern about legal rights and liabilities were fully pervaded commercial and governmental life, as I said before. In this contrast to what I call the bureaucratic legalism that's characteristic of Western European parliamentary democracies in their former colonies. In those countries, governance is more completely the province of governmental agencies and bureaucrats, but less interference from lawyers and judges. Not none, but less. There is less frequent use of litigation in courts as a mode of political action. That's the legalism part of the adversarial legalism. Second, legal dispute resolution in the United States tends to be more adversarial. That is, in comparative perspective, it is more dominated by the entrepreneurial initiative and jousting of lawyers for disputing parties. Judges are less controlling. In contrast, in the continental European legal tradition, the judicial process is more bureaucratic than adversarial. It's dominated by judges, not by competing lawyers in the adversarial complexities of trial by jury. Even in Great Britain, Canada, Australia and other former British colonies, the so-called adversarial system of litigation and adjudication is considerably less adversarial, more judge-dominated, less costly than in the United States. You'll want to know, is adversarial legalism good or bad? My answer to that is yes. On the positive side, the quote from the first page of my book, Adversarial legalism makes the American legal system especially open to new kinds of justice claims and political movements. American judiciaries are particularly flexible and creative. American lawyers and litigation in court serve as powerful checks against official corruption and arbitrariness. They are protectors of individual rights. They're deterrents to corporate heedlessness. At the same time, adversarial legalism is a markedly inefficient, costly, complex, cumbersome, punitive and unpredictable method of governance and dispute resolution. It inspires legal defensiveness and contentiousness. It's hard to do an overall balance sheet, like many things in life. It's good, but it has its bad sides as well. So my question today is the United States forever locked into patterns of adversarial legalism. In the last chapter of the book, I argued that adversarial legalism is so deeply rooted in the American system of government and in American political culture that its fundamental features almost certainly would continue to endure. Until explaining that prediction, I need to discuss why it arose in the first place. American political culture was forged in the run-up to a violent revolution against the politically unresponsive, distant monarchy. So from the start, Americans have been mistrustful of concentrated government power. That's just a simple part of American political culture. Resistance to rule by governmental bureaucracies. And, like the original Tea Party and its contemporary namesake, hostile to government taxation. So, as emerging from that political culture, the 18th century constitutional design decentralized power, fragmented it, and limited it. Both state and federal governments restricted government by means of written constitutional rules and individual rights that were enforceable against governments by independent courts accessible to ordinary citizens. Even compared to federal systems like Australia, the fragmentation of power in the United States goes further. First separation of powers. American constitutions, national level, state levels, city levels, fragment governmental power into legislative, executive, and judicial branches, each with powers to check and often to study the others. Second, and importantly, political party power in the United States is fragmented. Compared to most democracies, American political parties are less cohesive, less disciplined. And that too fragments power. Parties can unite and concentrate power. Fragmented parties disperse it. It makes it harder for presidents, governors, and legislative leaders to rule. Due to distrust and fragmentation of power, throughout the 19th century, government bodies in the United States were small and limited. State and county courts were called on to provide governance. Called into action by litigation, judges developed and enforced the common law of contract and property for a market economy. So adversarial legalism as a mode of governance has deep historical roots. In the 20th century, especially beginning in the 1950s and 60s, the reach and intensity of adversarial legalism in the United States grew remarkably. One cause was, at least in the way I characterize it, is the growing salient of a new strain in American political culture. Americans and the interest groups they formed came to expect and demand more active government. They developed what the legal historian Lawrence Friedman is called a culture of total justice. That culture, Friedman argued, was stimulated by modernity. In the 20th century, people came to realize that modern societies have the technical, technological and organizational capacity to prevent many kinds of misfortunes and mistreatment. They can invent double hulls for oil tankers and tests to detect carcinogens and social insurance programs and regulatory inspectors and so on. If those techniques exist, people can't consent. Government should mandate their use. Meeting rising political demands for total justice seems to require more law and a more powerful, more activist government to revise and enforce it. And that dynamic, growing societal capacity for social engineering, rising public expectations, rising demands for activist government and more law affected all economically advanced societies. It drove the growth of the modern regulatory state and the modern welfare state. But in the United States, that desire conflicted with a political tradition of decentralized government. Adversarial legalism provided a way of reconciling, however roughly, those inconsistent political desires. For example, advocacy groups seeking new rights turned to the courts. American judges who were selected politically and educated to treat the law pragmatically were very responsive. They read new legal rights and remedies into the Constitution and into existing statutes. Courts led the way in ending racial segregation in southern schools. Judges revised tort law, making it easier for injured people and entrepreneurial lawyers to win very large money damages from corporations, local governments and hospitals. Adversarial legalism was a way of expanding governmental command and reach into the society without expanding the government bureaucracy, without raising taxes. Politicians, however, also responded because particularly in the 1960s and 70s, were pushed by grassroots social movements like the Civil Rights Movement, the Environmental Movement, the Consumer Protection Movement. They enacted statutes that created sweeping rights against discrimination and pollution. They created powerful new government agencies to enforce them. But here again, we have attention. New powerful agencies combined with traditional mistrust of power. So, legislatures created these agencies, but they constrained them with very detailed rules and procedures. They gave businesses and advocacy groups the right to challenge and sue government administrators for non-compliance with those statutory rules and procedures. So, American judges ended up ruling on the scientific and economic rationality of governmental regulations, the Forest Service Logging Plans, and much, much more. And individuals and advocacy groups were empowered to sue business corporations and local government agencies for not complying with federal statutes and regulations. So, in some, the more government grew, the more adversarial legalism was employed as a way to implement new laws and to hold government power accountable at the same time. So, it's because of these very basic political dynamics rooted in American political culture and political structure that I argued decade ago that adversarial legalism would remain the basic American way of law for the foreseeable future. Today, however, you can raise some questions about that conclusion. And I'll spend the rest of my time today telling you why. Most importantly, the last 15 years have seen the rise of a conservative counterreaction to the political and legal culture of total justice. It includes a marked hostility among political conservative leaders and among conservative judges for the regulatory state, the tort law system, and to adversarial legalism as a mode of governance. As a result, it seems to me political support for adversarial legalism has eroded in recent years and this change has impacted law and legal practice. This hostility to adversarial legalism and regulation has not arisen spontaneous. It's been consciously politically generated by determined, well-organized, well-funded political conservatives and business organizations. Ideological conservatives have created think tanks and networks that have fostered anti-status constitutional theories and skepticism about regulation. Conservatives have pulled the Republican Party sharply to the right for the more fervent anti-tax, anti-regulatory stance. Hard-right Republicans have succeeded to a significant extent in placing ideological allies on the judiciary, on the airwaves, and in both state and federal legislative bodies. Conservative organizations have used the mass media to disseminate distorted stories of overbearing government regulations in an out-of-control tort system. Plaintiff's tort lawyers I've spoken with claim that these negative stereotypes about undeserving claimants and greedy lawyers now affect the attitudes of jurors and probably many politicians as well. This assault on adversarial legalism and total justice in the realm of public discourse has been important, but to translate their ideas into law, conservative Republicans had to gain political power into a considerable degree. They've done so. Of the last eight presidential terms, Republicans have controlled the presidency and hence the federal bureaucracy for five, that's 20 years for the Democrats 12. After decades as a minority party, the Republicans have maintained majority control of the House of Representatives from 1995 to 2012, with the exception of 2009 and 10. Republicans also had majorities in the Senate, and hence both Houses in Congress from 1995 through 2007. In consequence, Republican presidents have been able to appoint ideologically conservative lawyers and judges to the U.S. Supreme Court and the U.S. Courts of Appeals. George W. Bush, president from 2001 to 2008, installed business-friendly leaders on a number of federal regulatory agencies. And in addition, Republicans now control more governments than the Democrats. A majority of state legislatures have tried to constrain adversarial legalism by enacting tort reform laws that limit money damage awards and that reduce injured plaintiffs' liability, I should say, to obtain damages from corporations and government bodies. I think it's even more important to note that legal change is propelled not merely by enacting new laws and regulations, but through what political scientist Jacob Hacker has referred to as political drift. That is the failure of a polity, a political system, to adapt existing laws and legal institutions to economic, social, and political and technological changes that create new risks, new kinds of injustice. By fighting for political drift, by fighting against doing anything, an anti-status political party or movement can achieve some of its goals simply by playing defense, by blocking new legal initiatives. One example in that realm concerns environmental health and safety regulation. My Berkeley colleague David Vogel recently published a book called The Politics of Percaution, a comparative analysis of regulatory stringency in Europe and the United States. In 1960s and 70s, really into the 80s, Vogel writes, the United States led Europe and the world in enacting stringent precautionary regulations to control pollution, chemical pesticides and additives, unsafe motor vehicle designs and other risks. And that Europe-American regulation often put risk reduction ahead of minimizing compliance costs. But since the mid-90s, a major political and policy reversal has occurred, kind of a big flip-flop. European countries, propelled by the EU government, have become the world leaders in initiating stringent risk control regulations. They often employ a strong interpretation of the precautionary principle, which emphasizes avoiding errors of under-regulation that is regulating too little or too late. Meanwhile, the United States has become a much more reluctant regulator. The precautionary principle has given way to an emphasis on avoiding the states of over-regulation. From a regulatory policy leader, the United States has become something of a lager, at least in comparison to Europe. For example, Vogel points out the United States has not adopted new EU regulatory standards concerning food safety, chemical safety, control of genetically modified agricultural projects, regulation of carbon emissions, and much more. So how did this reversal in leadership happen? Vogel goes through the story I just talked about. He notes that both the Republican Party and major business organizations like the U.S. Chamber of Commerce have moved sharply toward more ideological across-the-board opposition to government regulation. Business organizations spend a fortune on lobbyists to fight regulatory initiatives, and their lobbyists are guaranteed a respectful hearing by the business community's contributions to politicians' electoral campaigns. The conservative opponents to regulation have become much more outspoken in the public sphere. To quote Vogel again, in recent years, each claim about a new risk is likely to be challenged by a counter-narrative containing that was misinformed. I believe this conservative verbal war on regulation seems to have affected public opinion. In the 2011 survey, almost 60% of respondents in the United States agreed with the statement, government regulation of business usually does more harm than good. That figure had grown substantially, steadily since 2002. Even terrible things are happening like the Gulf oil spill, the Mexico oil spill. And polarization has increased. 84% of Republicans, but only 22% of Democrats, think there is too much regulation. I think these changes in public opinion indicate that the political legal culture of total justice, the culture that drove the expansion of regulation in adversarial legalism in the 1960s and 1970s, has been seriously weakened by a counter-culture of skepticism and even hostility. David Vogel's book is about environmental health and safety risk regulation. I could tell a story today about regulatory drift and about conservative success in blocking regulatory responses as new markets were created for risky home loans and financial manipulations undermining the giant financial institutions and branding the whole world into depression. I talked about some of that yesterday to some of you, and I don't have time to go into it today. Let me talk about another bit of evidence of change. The conservative political legal movement mounted in the salt on one key element of American adversarial legalism. The implementation and elaboration of public law by means of private litigation. That campaign was carried out both in the courts and in the political arena. I'll talk only today about the consequences of that assault on one arena, the United States Supreme Court. Experts in the somewhat technical and arcane law of civil procedure seem to agree that in recent decades, a conservative majority in the US Supreme Court has repeatedly sought to constrict adversarial legalism as a mechanism of enforcing public law. Law professor Andrew Siegel makes a compelling case that hostility to litigation was an organizing theme in the Rehnquist courts, jurisprudence. His reference is to William Rehnquist, appointed Chief Justice of the Supreme Court by President Reagan in 1986. He held that position until 2005. Many people talk about the first Rehnquist court and the second Rehnquist court because after 1994 there were more Republican appointees and Rehnquist led a court that was dominated by a five-judge majority of conservative Republicans. Revealing scores of these low visibility Supreme Court cases in that 1994-2005 period, Siegel discerns a common thread that is called visceral antagonism to the previous generation's expansion of adversarial litigation as a mode of governance. Case by case, the Rehnquist court made it more difficult for individuals to pursue rights claims against government bodies in business corporations. Let me just quote the summary. I'll read the summary. The court has narrowly construed statutes and federal rules of civil procedure and prior case law to reduce and eliminate remedial options for plaintiffs in civil cases. The court has protected governments and governmental officials from financial liability for violation of individual rights by expanding immunity documents and cramped interpretations of federal statutes. The court has consistently upheld the legitimacy and enforceability of form agreements whereby large organizations such as brokerage firms, hospitals, telephone companies and signing up companies shield themselves from lawsuits, diverting customer claims into industry-run arbitration systems. And it is, and to continue Siegel's summary, the Supreme Court has birthed novel constitutional limitations on the scope and size of recoverable damages, particularly the punitive damages that are feared and hated by large corporations. I might summarize those cases in another way. The court's rulings and opinions seem to reflect a tendency to worry a lot about the risk of government and business operations, the risk to them that's posed by unfounded litigation and by excessive legal detentions. Those risks do indeed come about in the system of adversary legalism, but the court majority doesn't seem to worry about the opposite risks. The risk of leaving egregious rights violations on remedy and the risk of inadequate deterrence of such violations by government, the risk of inadequate deterrence of violations by government bodies in business corporations. In other words, I said before, adversary legalism is good and bad, but the renquist court is all bad and they're ready to throw away the good. John Roberts was Chief Justice appointed to the court by George W. Bush who succeeded renquist in 2005. Under his leadership, the same conservative hostility to adversary legalism seems to continue. In a recent Law Review article, Law Professor Howard Wasserman writes, the court has divided sharply along ideological lines in cases addressing compelled arbitration of civil rights claims and rule of litigation, rules for bringing class actions, specificity of pleading in criminal rights and civil rights actions, and in other words, ruling that plaintiffs in lawsuits have to provide much more specificity rather than making a general claim in relying on pretrial discovery to fill in the details, which is very difficult for individuals when they're pursuing law organizations. In all cases, Wasserman continues, a conservative majority bluntly limited certain kinds of plaintiffs' access to the courts constrained as a legal and practical matter a meaningful opportunity to obtain judicial remedies for violations of rights. I think I might have time to give you one example, one of these egregious examples of one of those cases. There's a 2011 case called Connick Against Thompson. John Thompson was convicted of murder in Louisiana in 1984 and sentenced to death. In 1999, 15 years later, after many years on death row and several last-minute postponements of execution, new evidence came to light. The county prosecutor had failed as clearly required by law to inform Thompson's defense lawyer of blood evidence, indicating that Thompson was not guilty. In 2003, after various appeals, Thompson was retried for murder. He was found not guilty. Subsequently, he brought a civil lawsuit against the county government for violation of his constitutional rights. His lawyer showed that exculpatory evidence had been concealed in the county district attorney's office for 15 years. The Louisiana jury awarded Thompson $14 million in damage. $1 million for each year he spent in prison. But in a five-to-four ruling with the conservative justices and the majority, the Supreme Court reversed the award, deciding that the county attorney's office was not liable. One example of misconduct by one prosecutor the court held does not prove that the office itself was liable for failing to meet the relevant legal liability standard, which is failure to adequately train and supervise individual prosecutors. The majority brushed aside Thompson's attorney's arguments that liability in such cases is essential to give district attorney's offices incentives to adequately train and supervise individual prosecutors. I note that such incentives might be helpful as suggested by a March 2012 study by the respective innocent project. It showed that 91 criminal cases in the adjacent state of Texas, since 1991 criminal cases, since 2004, the courts had ruled that the prosecutors had committed misconduct, ranging from hiding evidence to making improper arguments to the jury. It's sort of an interesting, you have to understand that prosecutors, we don't have a professional, national professional prosecutorial court. It's a local political appointment to be the prosecutor. Usually, actually, they're usually in most states that elect it. They're not, in many places, they're not highly professional. There's no state attorney general that can hire and fire local prosecutors. The national attorney general has no control over them at all. Adversarial legalism grew as a way of providing lateral attacks, lateral ways of holding them accountable. But here at the Supreme Court is eroding that and that evidence of how often prosecutors misbehave in Texas. That's one study that shows it. It suggests that that's a serious attack on adversarial legalism. Now, let's see if I can find my way back where I was. Okay, to summarize. The conservative political and legal movement slowed or arrested the extension of adversarial legalism in the United States. The Republican Party should win the presidency and gain control of both houses of Congress. I would expect it to make further big changes in adversarial legalism. So the first general conclusion I draw from this is that adversarial legalism is not inevitably the American way of law. It is politically contested. And that suggests that national styles of law are not entirely fixed by political traditions and structures. They can be bent one way or the other by the surges and declines of partisan political movements in parties. Nevertheless, it seems to me that the political structures and institutions and processes that undergird adversarial legalism in the United States still remain fundamentally intact. Conservative tort reformers have not made major changes in the basic institutional practices of the tort law system. They have applied jury, with broad juror discretion to award substantial damages for pain and suffering, contingency fees to attract entrepreneurial lawyers, lawyers' powers to amalgamate cases into class action, lawyers' powers to engage in extensive pretrial discovery. Conservative Supreme Court decisions have made it harder to bring some kinds of statutory and constitutional claims in federal courts, to change the basic structures and incentives. They've nibbled at the edges, but the structures are still there. Similarly, the slower pace of regulatory enactment that Vogel describes does not mean that regulation has not grown in the United States or that it will not grow in the future. When highly visible regulatory failures occur, the culture of total justice kicks in. It quickly gives rise to outraged demands and regulatory fix-its. In the last four years, the Obama administration, even in the face of determined Republican opposition, has pushed through Congress important new regulation in several policy fields from it. New regulations about oil drilling in deep waters, reserve requirements in governments in financial institutions, in the derivatives market, new regulations in air pollution, this treatment of the most vulnerable people by private health insurance companies and more. So, most fundamentally, the United States remains, regardless of these changes in the last ten years, an extraordinarily law-dense society. Its laws and regulations remain the most detailed complex in the world, which requires businesses and hospitals and universities and governmental bodies to retain the services of boards of lawyers. American judges are still selected or elected to partisan political processes. Courts still play a major role in shaping the electoral process. The rule on the constitutionality, usually negatively, on campaign finance laws, of new electoral district lines, and as in the fateful case of 2000 and Bush against Gore, on the conduct of elections by state and local governments. But if the political and legal structures that encourage adversarial legalism remain deeply entrenched, I think we can say that the ideological valence or political direction of adversarial legalism is subject to change. Let me give you one more case to illustrate what I mean by that. In 2010, President Obama signed into law the Patents Protection and Affordable Care Act. One controversial provision requires individuals who remain uncovered by expanded public and private health insurance plans to purchase their own health insurance policies, mostly at heavily subsidized rates. 26 Republican state governors, a small business association, and conservative legal advocacy groups filed lawsuits in several states, many states, arguing that the law, arguing that the law, particularly that so-called individual mandate, exceeded Congress's constitutional powers under the interstate commerce clause. Its powers regulate interstate commerce. That law suits a classic example of American adversarial legalism in action, invoked by Republicans. Conservatives, the use of litigation to seek political victories in battles at an interest group where political factions have lost in the electoral arena. Lower federal courts in different parts of the country divided on that commerce clause issue. Republican judges tend to strike, tend to strike down the individual mandate or the whole law. Democratic judges all upheld it. Excuse me. In June of this year, as you probably know, let's imagine these battles did because they're sort of so public, yet broadcast around the world. They closely divided the United States or upheld the individual mandate. To the surprise of many and to the outrage of the political right, Chief Justice Roberts voted with the four Democratic justices in that regard. But he wrote a very complex opinion. He used different reasoning than the Democratic justices to undermine the commerce clause argument. Indeed, he joined the other four Republicans in an opinion that limited the reach of Congress's power to regulate commerce in the future. The five Republican justices, the four plus, the four who wrote it, the four most conservative ones, plus Roberts's vote, their opinion departed from a line of precedent 70 years old. It did so in a manner that creates a new legal pathway for business interests to challenge for future congressional regulatory statutes and administrative regulations in court, and that invites judges to employ more demanding standards in scrutinizing laws and regulations enacted under the commerce clause power. One more case. In 2008, a conservative majority of the Supreme Court decided that the Second Amendment of the Constitution, ratified in 1790, establishes an individual right to possess arms and struck down Washington, D.C.'s gun control law for violating that right. This was a big surprise. Throughout much of my life, when I went to law school in the 1960s, that's not what the Second Amendment meant. It didn't confer an individual right to bear arms. But in this case, too, the conservative, so the conservative justice relying on recent scholarship, a lot of it generated by the National Rifle Association originally, they departed from these longstanding understanding, and in that decision, together with a subsequent one that applies that decision nationally, the first decision about Washington, D.C., it invites the National Rifle Association to challenge state and local laws regulating the sale and possession of guns. That's a litigation process that's likely to continue for years to come. For the moral of these last two cases, this is clear. The conservative Supreme Court and the conservative justices and their ideological mates in the conservative legal movement at large are skeptical about and even hostile to adversarial legalism and it facilitates individual claims against law enforcement bodies or individual claims against businesses based on anti-discrimination law, product liability, labor law, and environmental law. These conservative judges have had no compunctions about making rulings that expand adversarial legalism by facilitating lawsuits by businesses against governmental regulation or by individuals like gun owners against governmental regulation or against affirmative action programs designed to promote racial equality. So my conclusion is that the ideological tunes played by adversarial legalism may shift over time as partisan politics and ideological tides bring about change in particular rules, doctrines, and procedures. But the music of adversarial legalism, sometimes sweet, sometimes discordant, will continue reinforcing American exceptionalism in that regard. Thank you. I'd like to hear your questions. Well, I'll try one. The courts have often been thought of as a useful weapon for the weak. You may not be able to access anything else, but you can do it to the courts. But with this shift, and so in an adversarial system, you might think, well, we're encouraging you to still say that, but given the ideological nature of all the things that are happening, I would assume that the opportunities for the weak are narrowing and narrowing. The opportunities for business are expanding as a conservative, ideologically driven, judiciary, fine, or, you know, those windows expand, presumably as the case, but the opportunities for the weak, by an larger amount, to use the courts as an alternative mechanism. Is that fair? Yes, but the question is how much? The courts have made it a little bit more difficult. The procedural rulings make it more difficult. It will make it harder to get certain remedies. The gradient that you have to march up is steeper. Or the doorways you have to fit through become a little bit narrower. But I think, you know, cases will still flow into the court. Prisoners will still petition the courts for violations of their constitutional rights. People will still sue attorney, you know, county prosecutors for evidence of malpractice. The next time their lawyers will try to get more systematic evidence before they do it. That's not easy. But I don't think that impulse to do it will still be there. There's still a lot of laws and the basic structures that allow for cases to be brought are still there. When the Supreme Court, a lot of things that the Supreme Court did was, it goes along with the new constitutional statutory reputation period, the growth of adversarial legalism was stimulated by the practice of judges in the 1960s under the chief justiceship of Earl Warren in the period that after, to take statutes and constitutional provisions that didn't say anything about the right to enforce them. The lawsuits, the commands, the governments and the court would imply an individual right to bring the lawsuit. Fourth amendment forbids unreasonable searches that as Warren Court said, well that also allows individuals who have been victimized by one to argue to the court that it should not be used, that evidence sees that way should not be allowed to be used in trial. That's also a very, it's an activist rule and it invented that exclusionary rule. The court, there's a Supreme Court decision that said that fourth amendment also gives right to an individual right of action to bring a lawsuit for damages against law enforcement officials who conducted illegal search and incision. Supreme Court decision that in one of the articles I mentioned a few years ago constricted that. This court doesn't like implied rights of action. Whenever it has a tough chance to do it, it takes away an implied right of action. Now, the Congress could always enact such a law or state legislature can enact a law that would allow for more lawsuits. The current political climate though makes it very difficult for legislatures to explicitly create new rights of action, to use the courts to enforce general principles. But, there's still an enormous flow of such cases that still go on. There's a recent book by Charles F. political scientist, United States called Making Rights Real that talks about the expansion. There was a post-Civil War statute that made violations of civil rights law that said violations of civil rights by governmental officials can when individuals can bring a law to get a remedy against them. During the 1960s and 1970s, the Supreme Court revived this old statute which hardly ever could use a sort of like an interesting kind of statute. I'm going to think about it. It's very typical of adversarial legalism. The post-Civil War Congress and once reconstruction ended there was no federal bureaucracy in the south to enforce civil rights laws. So, they created a private right of action to do it. It didn't work very well for 100 years. But the Supreme Court woke that up by implying new rights in the 60s and 70s. And an Epps book showed that in the starting of the 80s and 90s lawyers became much more skilled at bringing lawsuits against police departments for violating that right by not controlling police violence. They joined by police reformers, took those fear of litigation generated by those court cases to push municipal police departments city after city to institute better police training programs supervision programs concerning the use of force. It's a very good example of how adversarial legalism can produce changes in governance. That machine is still there. The machine is still there for use. So, I wouldn't say that it's contracted enormously, it's contracted some. The more conservative judges dominate the courts, the more conservatives, legislatures don't like adversarial legalism at all and won't try to remedy those cases, the more those opportunities will be spent. It's interesting that there's something very, there's a broad cultural, political consensus on the right to sue. The right to sue. The right to haul government officials into court for doing something wrong. Call corporations into court for doing something wrong. Legislatures will be getting petitions for new statutes to expand those rights over time too. It's hard to say what the overall direction is. The more conservative the country becomes the more adversarial legalism will be restricted. But, nothing that's happened so far is major. Thanks again for the wonderful presentation. I guess I just have a comment on the question I mean I thought the storyline that you developed was very compelling. It was essentially a political culture argument in which you set forward the idea that the culture of total justice sits quite uneasy with the traditional culture of an entire status perception in the US and essentially arbitrary legalism is an outcome of that tension. It's a mitigation factor. But then when you continue to describe the last 50 years I must say a bit of surprise that your storyline is largely an institutional storyline. In other words, yes it's true that conservatism is on the rise but as you pointed out the country is polarizing so it's actually happening on both sides of the spectrum at least I'm listening to you right now that power balance has shifted in other words the house of representative and the senate has been controlled by conservative forces and most importantly probably the supreme court. In other words I guess what I'm trying to play back to you is that your argument on the one hand is a political culture embedded argument but your change argument is an institutional argument and if that's true then I would say we can't really make judgments so quickly about whether there is a change in terms of that view now because I think it would depend highly on how the political wind is blowing so in other words if it happens that Obama can appoint another supreme court judge and the balance is shifting and maybe the flavor of the months in the house of representative is shifting maybe we go back to what you described earlier as a total justice. The second question and this is more explorative since we are going to see how much are we really talking about the unique American phenomenon but to what extent and I remember your presentation in Hawaii on consequential courts that to what degree can we say this idea is also spreading now to other parts of the world including Asia where we see an increasing amount of constitutional courts and so on emerging and you know civil society as part of the modernization process using these courts in the process of challenging. Two good questions I think that I think the story I tried to tell was that in a way I'm trying to say what happened is that a counter culture developed first and was able to give ideas to consider the politicians, the judges generated a set of ideas that contested the whole way things were running in the United States and the more Republicans gained power the more they could put agents on the courts and the legislatures who adopted those ideas that made it for the change I think ideas matter in politics and of course it's not just these ideas politics shifts no one is debating this in the presidential and congressional elections today they're debating other ideas so other things matter but ideas once politicians gain office what they do is influenced by their culture and also some of the public opinion poll on regulation shows that people in the middle are much more not so eager for regulation Vogel's argument the public talks a lot about public opinion too and he thinks that a complacency developed in the United States sort of a faith and there was enough regulation there was a stretch where there weren't a lot of, the alarm bells were not so great, whereas regulation grew in Europe which it talks about as because there are very highly publicized disasters like mad cow disease and mobilized public opinion and fear grew rapidly so you get more cascades like you know concerning genetically modified things anyway I think culture, public opinion and culture are part of that story too there's a whole, had more time I have a whole part of my talk about what's happening in other countries Daniel, of course there's one thing that's made the United States a little less exceptional has been the rise of constitutional courts in many countries often as a response to totalitarian highly authoritative regimes demand distrust of parliamentary democracy alone and demand for checks on parliamentary democracy by a constitution with rights and courts with constitutional powers overturned legislation and hearing rights claims in the courts Daniel Kellerman has so in many countries around the world constitutional courts as you said a significant role in government from South Africa to India Taiwan and South Korea to Brazil so something is changing and in Germany and France as well so that constitutional litigation becomes much more common and use of courts becomes greater as a mode of engagement in politics in that sense it moves toward the United States Daniel Kellerman, political scientist very interesting new book called Eurolegalism where he portrays as something that I've written about too there's a chapter I didn't put in adversarial legalism on this because it was getting too long how the EU like the United States makes rules but doesn't have a bureaucracy to enforce them and so they've used the European Court of Justice to direct doctrine to enable European law to be enforced in member state courts by litigation and so there's more lawyers in Europe, more litigation Kellerman points out my only point in that regard is that they're stopping courts it's a much milder form of adversarial legalism modes of adjudication are still hierarchical and not adversarial in litigation like the United States but the distance is I think if the United States was here before and Europe for example was there he moved a little bit and they moved this much but there's still a considerable difference in legal style I'm not capable of short answers your talk identified for me a couple of tensions which I don't really understand or I don't understand how they justify so there's the tension between a strict separation of powers and the very political way the judges are appointed and expected to act in the United States and then there's the tension between the denseness of the law, the specificities of the law and the expectation of incredibly activist courts interpreting those laws could you just comment on the pushback against the appointment of judges and their expectation of things and completely on the vice, is there any debate about those tensions okay yes yes conservatives being very vocal on denouncing activist judges demanding strict interpretation of the constitution and of statutes that doesn't stop conservative judges from making very activist decisions if it's producing the value advancing the values they want so we sort of have a culture that both values adherence to law rules to control things but that exists in absolute contradiction to the mode of appointment of an election of judges in states so they're political and no matter how specific the rules are judges can use rules can never decide cases it always takes judgment and judgments will vary between conservative and liberal judges so there's a tension but it's a tension that's never been reconciled in the United States we want the rule of law and we want political responsiveness who doesn't we try to do it both at the same time we don't make a choice