 It's my pleasure today to be speaking with Emeritus Professor Robert Kagan, Professor of Political Science and Law at University of California in Berkeley. Bob has a glittering scholarly career. He's a Fellow of the Academy of Arts and Sciences and he's the recipient of all sorts of honours and awards over many years. Bob we're really delighted to have you here visiting at the Australian National University and particularly in the College of Asia and Pacific. You've spent a lifetime thinking about the interaction of law and politics and you've famously argued that the American legal system is quite distinctive globally and that as you call it the American way of law is characterised by adversarial legalism. Can you tell us what you mean by that and how it's distinctive globally? I learned about this distinction by reading studies, collecting studies that compare the American legal system with others and how the, not just what the law is, but how the institutions and the processes actually operate. And when I do that I see a pattern of American laws are more legalistic in the sense that they're more detailed, more prescriptive, denser and more complex and the same thing with our regulations. They and the system is more adversarial in that the legal conflict more fully pervades not merely the courts but everyday life particularly in government and in business and once inside the courtroom or inside regulatory and administrative agencies there's more clashing of lawyers. They're less top down and bureaucratic in their operation and lawyers and legal conflict generate the parties have a larger role and lawyers play a larger role in shaping outcomes and in creating the ideas that lead to new legal outcomes. One of your themes that intrigued me was to, or the way you've emphasised that we need to understand legal systems as being embedded in wider social and political contexts and you've pointed out that in your own country there's been a powerful conservative challenge to what had been established norms and practices in the legal world and that's particularly been over the last 10 to 15 years that this has been evident. Can you tell us some more about that and what some of the consequences of that as you call it conservative counter-attack have been? I think of it as a counter-attack or maybe even a backlash. Adversarial legalism has been part of the American legal system, part of the American way of governing itself from the late 19th century, I mean the late 18th century when the constitutions of the state and the federal governments were created. But in the post-war, war two period there was a big explosion of adversarial legalism. It came with the growth of the regulatory state and it came with the growth of what I call a culture of total justice, a term I get from legal historian Lawrence Friedman in which people came to demand more of government or more demands for governments to control pollution, to make the world safer, to diminish discrimination or to attack discrimination, to make more procedural fairness in every area of life, more rights for people to claim against governmental arbitrariness or corporate arbitrariness. And this led to a much more activist mode of constitutional and statutory interpretation by courts and it led to sweeping legislation that was enforced to a large extent by litigation as well as by governmental agencies. Conservatives have seen this as in some ways anti-democratic thinking that too much authority has gone, goes to regulatory authorities and to courts, but more importantly I think the backlash comes from the business community that doesn't like being sued all the time. And so conservatives in the legal profession organized to try to change legal ideas, to try to place, develop new conservative legal ideas where they thought of the displacement of all, react against the old displacement of legal ideas by this total justice kind of ideas and judicial activism and law as a tool of social engineering and to try to create a more limited state to go back to constitutional interpretations before the new deal that limited the state, limited the federal government, power vis-a-vis the state governments and to try to limit governmental intrusion into what they saw as a free market system. Is it too early to say or would you say we've reached the high watermark of conservative backlash or rebalancing or whatever term one would like to use? I think it's hard to know that because it's really a matter of politics. You can have these clashes of ideas, the ideas that supported adversarial legalism, the ideas of total justice, the ideas of judicial activism, of rights claims against government as a good way of running a country to be more concerned about the have-nots rather than the haves. That's now more fully contested and the extent to which the courts and the legislatures and the regulatory agencies move toward one or the other of those polls depends on the ebb and flow of politics. It requires when the Republicans get more power, they point more conservatives to the courts and to government agencies, or even if they don't have majorities, can block new regulations to try to keep up with changing events. The more the Democrats win, the more they'll be able to push back the Republicans and we'll see more adversarial legalism. Rather than seeing it rooted as the American way of law, I guess I think it's still rooted as the American way of law, but it's political valence, whether it's going to be more conservative used for conservative goals or for more progressive goals will change with the political tides. Bob, you've been a visitor here with our regulatory studies network, a group of which I have to say we're rather proud. As you know, we've got a big interest in Asia and the Pacific. What lessons do you think that we might draw, those of us whether living in Australia or living or working around the Asia Pacific region, any sorts of lessons that we might be drawing from your work in thinking about countries over this side of the Pacific Ocean? That's a good question and I should say I'm a big fan of your regulatory institutions that work here to people who study regulation around the world or think of it as the mecca for that kind of work. There's a lot of aspects of adversarial legalism and about American regulation that one might criticize. People all around the world, legal bureaucrats and many law professors will say be careful when the more rights we give and the more power we give to courts and to lawyers and to litigation, be careful or we might end up like the United States because there's been a lot of publicity about excessive litigation or giant jury awards or high legal costs that tie up both government and business. I think the lesson that I draw from that is don't worry about that because there's such a large gap you could, if the United States is over here and the power of litigation and lawyers and parliamentary systems which mostly exist not only in Australia but in other Asian democracies are sort of over here, you could make, you could add a lot of legal yeast to your cake and not end up being like the United States and because adversarial legalism is not only cumbersome and costly when there's a lot of it but it's also a terrific method for keeping government honest, for providing alternative channels for political activity, to put pressure on regulatory agencies, to provide alternative ways of enforcing laws and enforcing and developing rights and policies. Bob, it's been wonderful to have you here as a visitor. Let me just say for any students that might be watching this little clip, if you're interested to know more about Bob's work be sure of course to be reading his books but if you want to be in contact with him you can find him on the internet without too much difficulty or you can be in touch with me and we can put you in touch with him but for now Bob let me say thank you to you for taking time to be with us. It's a great pleasure. It's a wonderful university to visit and it's been a joy for me to be here. We'll have to get you here for a third visit. I'll try.