Abundance Liberalism versus Adversarial Legalism
For decades, liberals embraced lawsuits, legal rights, and judicial policymaking as means of driving social change and holding powerful interests to account. But recent years have seen second thoughts proliferate, especially among proponents of abundance liberalism, the movement to unleash the power of both government and the private sector to supply essential goods and services. Abundance liberals from Ezra Klein and Derek Thompson to Jennifer Pahlka have embraced law professor Nicholas Bagley's argument from a 2019 article, "The Procedural Fetish," that liberal-backed rules intended to make executive-branch policymaking more open, transparent, and accountable have become a major barrier to progressive change.
Bagley's widely cited article showed how liberals' unexamined dedication to "proceduralism" has handicapped state capacity. His examples come mostly from his specialty, administrative law, where major new initiatives must run a gauntlet of procedural hurdles, many of them erected by the left, before they can take effect. As Bagley noted, a long tradition of research in law and political science has examined and critiqued the effects of those hurdles, but this work is "absent entirely from the political conversation and relegated to the sidelines of the academic debate."
This research tradition ranges far beyond administrative law to examine lawsuits' centrality in American politics and public policy. It raises questions about how abundance liberals can realize their ambitions without rethinking the role of litigation in American life and politics. Litigation, this research suggests, is not simply a tool, a policy mechanism we can turn on or off; it embodies a self-reinforcing organization of authority that Americans find politically attractive. Turning away from litigation, then, will require more than merely lowering procedural hurdles: It will entail re-legitimating and re-empowering other forms of authority, and overcoming influential actors with a stake in preserving lawsuit-focused public policy.
ADVERSARIAL LEGALISM
Law professor Robert Kagan coined the term "adversarial legalism" in 1991 to describe the long sequence of twists and turns that took place during the fight over the dredging of Oakland, California's harbor. Kagan's classic study of this impasse illustrates why litigation can be so troublesome for a "liberalism that builds" — and why reform can prove so difficult.
In the 1970s, Kagan wrote, the Port of Oakland began seeking approval and funding from Congress to dredge its harbor so that it could compete with other ports, which could accommodate larger, deeper ships. In 1984, the Army Corps of Engineers completed an environmental-impact statement that included a plan to dump dredged material into the San Francisco Bay. Congress authorized funding for the plan in 1987, but California water-quality and fish-and-game agencies raised concerns that the dredged material might contaminate the bay and harm local wildlife. Given that state agencies could block the proposal, port authorities proposed to move the material to a location further out along the state coast.
This second plan, however, came under attack by an environmental group, which threatened to file suit. Port authorities, the corps, and the Environmental Protection Agency negotiated a settlement with the group to preclude the lawsuit, but the new plan they agreed to — which moved most of the dredged material to a site 10 miles off the San Mateo County coast — incurred another lawsuit, this time from a fishing group. Though a federal court rejected that suit, county officials filed yet another suit against the port in state court, halting the project once again.
Port authorities then drew up a new plan in which the bulk of the dredged material would be dumped into the Sacramento River Delta. But a local water agency challenged this plan as well. After that suit failed, port authorities halted the project in the early 1990s, as the escalating cost of disposing the dredged material threatened to render the entire effort non-viable.
Finally, in 1992, port authorities secured permission to go forward with a plan that included dumping some of the dredged material right where they had first proposed, into the San Francisco Bay. In 1995, after years of litigation, the project was completed. Kagan concluded:
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....But neither could any single court or agency authoritatively designate a single environmentally acceptable, economically sensible alternative. When one agency found a plan legally acceptable, another would disagree. When one court upheld a regulatory decision, another overturned it. No agency could ever be sure that its legal rulings would hold up in court.
The root problem in the dredging fight, Kagan's study demonstrated, 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 affected interests. Yet in the dredging fight, there was no single political, bureaucratic, or expert body entrusted to resolve the matter.
Kagan used "adversarial legalism" to capture this decentralized form of authority. He compared it to "bureaucratic legalism," the more familiar form of centralized hierarchy associated with Max Weber in which disinterested civil servants neutrally enforce rules. Adversarial legalism, Kagan observed, sidelines civil servants in favor of outside groups affected by the rules. If they have the resources and inclination, these groups can file suit.
The litigants in the suit can then argue not just about how rules should apply to their dispute, but about the meaning, justice, and legality of the rules themselves. The decision-makers — state and federal judges and officials in scattered state and federal agencies — 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 end point.
Whereas other forms of governmental authority are typically centralized, public, and relatively stable, adversarial legal authority is decentralized, privatized, and fluid. These features render it a double-edged sword. Although adversarial legalism is theoretically open to all, including those disadvantaged in other areas of politics, the process is potentially costly, in both time and money. Adversarial legalism is flexible, and thus adaptable to new problems and social concerns. But it is also uncertain and unpredictable, making organizational planning — notably planning that involves 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. Its combination of openness and costliness can also be weaponized, as groups use the threat of litigation to extract concessions on unrelated matters.
AMERICA'S BARROOM BRAWL
An array of law professors and political scientists — Lon Fuller, Donald Horowitz, R. Shep Melnick, Sarah Staszak, Marc Galanter, Martha Derthick, Rebecca Hamlin, Joshua Dunn, and others — have critically examined adversarial legalism as a policymaking mechanism. Their research documents the costs, complexity, and unpredictability of adversarial legalism across a wide range of policy fields, from education and immigration to corporate governance and labor law. Their studies explore the effects of its decentralization, its privileging of lawyers and judges over political leaders and policy experts, and its empowerment of "repeat player" litigators. They also analyze its relative lack of capacity for policy analysis and its reduction of complex social problems to disputes among individuals.
In his comparative research, Kagan contrasted American adversarial legalism with other forms of authority common in industrialized democracies, which he found addressed social issues more effectively. In Western Europe, for example, policymaking in high-profile fields like environmental and labor policy often happens through discussions among major associations representing labor, business, and government. These parties come together to negotiate a solution that parliaments ratify. Parliamentary democracies foster this corporatist style of policymaking, centralizing it within the majority coalition that dominates government.
By contrast, the fragmentation of American government, combined with its many veto points, engenders a more pluralistic system of interest representation in which smaller, newer groups have a voice. Here, no leading associations possess authority to speak for an entire constituency. Instead, within each broad sector — be it labor, business, or the environment — interest groups from different circumstances and with different philosophies compete to promote their interests. No forum can gather all the affected interests and guarantee a final settlement of their differences; power is instead dispersed among overlapping branches and levels of government designed to respond to different constituencies. The fact that major groups within some sectors have signed off on a compromise carries no legal weight; dissident groups can challenge the bargain and, even when they don't prevail — as in the Oakland dredging saga — string out the matter's resolution. The result, political scientist 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 everybody drops from exhaustion."
As Alexis de Tocqueville observed long ago, the United States has always been a nation in which social and political issues regularly end up as legal disputes. But the foundations of the adversarial legal regime Kagan observed in the Oakland dredging dispute were laid in the 1960s and 1970s.
In an influential study, legal scholar Martin Shapiro showed how the rise of adversarial legalism grew out of the declining legitimacy of both elected officeholders and experts in the executive branch. During the New Deal era, Shapiro observed, Democrats favored an ideal of government by "bureaucratic expertise under presidential control." This preference lasted through negotiations over the Civil Rights Act of 1964, when Democrats pushed for an agency modeled on the National Labor Relations Board that would leverage its cease-and-desist authority to enforce employment-discrimination laws. It was moderate Republicans, not Democrats, who insisted on lawsuits as the primary way of enforcing laws against such discrimination.
But as the 1960s progressed, a new generation of liberals grew wary of centralized governance. These liberals worried that experts in the executive-branch agencies suffered from "professional deformation." It was thought, Shapiro wrote, that the poultry expert at the Department of Agriculture and the aeronautical engineer at the Federal Aviation Administration had come to believe "what is good for chicken farmers or the aerospace industry necessarily is also good for the American people." Post-New Deal liberals came to embrace the theory, developed by political scientists such as Grant McConnell and Theodore Lowi, that business- and professional-interest groups had captured major segments of the executive branch.
The solution, according to Ralph Nader, a progenitor of the new brand of liberalism, was to create a corps of "public interest" lawyers who would stand watch over the captured bureaucracies, uncovering corruption and mismanagement. Because the agencies could never be trusted to aggressively regulate, Nader argued, public-interest groups should enjoy the right to bypass them and enforce the law themselves.
Similarly John H. Adams, the founder of the first environmental public-interest law firm, the Natural Resources Defense Council (NRDC), recalled an epiphany he had in 1969 while watching raw sewage float down the Hudson River. "Laws to combat pollution," he said, "would be a powerful tool. What the world needed...were lawyers to enforce them." The NRDC lobbied for environmental laws like the Clean Water Act, which became the bases for litigation campaigns leading to several landmark court decisions. Other leading environmental groups — the Sierra Club, Greenpeace, Friends of the Earth, and Earthjustice — also lawyered up, using litigation to pursue their policy goals and lobbying to expand lawsuit-based approaches to addressing environmental problems. Roughly 50 years later, litigation remains a core political activity of public-interest groups. Earthjustice, to take just one example, reported in 2024 that it spent over $82.8 million — about half its annual budget — on litigation.
The environment was just one of many policy areas — including consumer protection, civil rights, education, disability, and immigration — in which similarly litigation-oriented public-interest groups proliferated. Public-interest lawyers and liberal law professors extolled the virtues of litigation as compared to more traditional forms of governance. They took advantage of the reverence Americans had for courts, judges, and heroic lawyers at the time, embodied in iconic cultural figures like Perry Mason in the eponymous television show and Atticus Finch in To Kill a Mockingbird. In their view, political theorist Judith Shklar wrote,
law aims at justice, while politics looks only to expediency. The former is neutral and objective, the latter the uncontrolled child of competing interests and ideologies. Justice is not only the policy of legalism; it is a policy superior to and unlike any other.
Legal scholar Owen Fiss struck a similar chord, arguing that litigation should be a source of national "pride rather than shame," because it is "not a reflection of our combativeness but rather a tribute to our inventiveness and perhaps even more to our commitment" to justice.
The new generation of regulatory statutes enacted in the 1960s and 1970s fostered litigation that gave public-interest groups the legal standing and, thanks in part to legislation awarding these groups attorney fees, the wherewithal to challenge agency execution of the law. At the same time, courts began to intervene more extensively in executive-agency policymaking processes. Judges required agencies to respond in much greater detail to criticisms of their policy choices and regularly overturned agency decisions that they deemed insufficiently defended. Administrative law, once a relatively quiet realm, began taking on the characteristics of the policy barroom brawl Wilson described.
THE POLITICS OF PERMITTING REFORM
For liberals who want to build, clearing a regulatory path for the construction of new housing, a green-energy grid, and infrastructure designed to withstand climate change is essential. Some on the left have realized that accomplishing this will require taming adversarial legalism, especially in the permitting process.
On its face, a liberal call for deregulation seems politically promising, connecting the left with traditional foes of adversarial legalism on the right as well as business groups. Yet abundance advocates may underestimate adversarial legalism's entrenchment in American politics and overestimate the impact of typical reform approaches.
In our research on the politics of adversarial legalism, we identified three basic reform strategies: "management," "discouragement," and "replacement." Management reforms seek to blunt adversarial legalism's effects by streamlining the dispute process. They attempt to speed up case resolution by clarifying legal rules, imposing tighter deadlines, or fostering quicker negotiation through mediation and arbitration. Many permitting-reform proposals fall into this category. Last year, for example, a bill introduced in Congress, the Energy Permitting Reform Act, would have shortened the timeframe for appealing permitting cases from six years to 150 days, ordered agencies to respond within 180 days to judicial remands, required courts to expedite appeals on permitting decisions, and created simplified review processes for certain project types.
Management reforms are typically wonky and technical, and tend not to attract much notice from those unversed in the picayune details of the legal field in question. That's not true of discouragement reforms — the sledgehammer alternative to management reforms.
Discouragement reforms attempt to reduce litigation by making lawsuits harder to file, harder to win, or less rewarding for potential plaintiffs. They tend to be politically polarizing because their distributional consequences are clear: Defendants benefit, while plaintiffs (and their lawyers) lose. The highly partisan tort-reform movement in the United States — which sought to cap awards in personal-injury lawsuits, limit the grounds on which one can sue, and grant some actors immunity from suits — is the preeminent example of discouragement reform. A prominent non-tort example is the 1996 Prison Litigation Reform Act, which seems to have significantly reduced prisoner lawsuits.
Many of the most visible permitting-reform proposals fall into this category. U.S. Representative Bruce Westerman, for example introduced a National Environmental Policy Act (NEPA) discouragement bill that would raise the threshold requirements for triggering environmental-impact-statement reviews, reduce the scope of their analysis, and limit the kinds of NEPA lawsuits that can be brought. At the state level, after years of bitter political conflict, California recently enacted a sweeping series of discouragement reforms, exempting a wide variety of housing and infrastructure projects from its own state version of NEPA.
Court rulings that reduce litigation opportunities also function as discouragement reforms. This spring, the Supreme Court handed down its first major NEPA decision in two decades. The majority urged lower federal courts to defer more to agencies that approve infrastructure projects and attempted to reduce the sweep of the law.
THE PROBLEM FACTORY
The effects of management and discouragement reforms, however, have been mixed, at best. They suffer from a fundamental limitation: While they tinker with the rules, they leave the existing adversarial legal structure in place.
In "The Problem Factory," an important article about planning politics in Britain, economist Daniel Davies argued that effective permitting reform requires radical restructuring. Although Davies did not use the term "adversarial legalism," his characterization of British planning processes fits the definition. The British planning agencies, he wrote, are passive and unable to deliver a final decision on whether a project can go forward. Instead, their role is to remain neutral and adjudicate disputes. The actors who drive the process are the developer on one side and the objectors on the other, with the latter including all groups and individuals who may challenge the developer's proposal in an agency or court. The objectors' role recalls Nader's vision for public-interest lawyers, who tirelessly raise concerns, add new voices to the process, and force careful deliberation on possible risks.
Faced with this level of scrutiny, developers must anticipate all potential objections. They hire consultants, lawyers, environmental experts, and engineers who study the situation, identify any hook for legal challenges, and advise on how best to defend the project. Because any objection, even one considered unlikely to succeed, can derail the whole project, developers tend to be risk averse. In their hyper-vigilance, Davies argued, they often end up bidding against themselves and making concessions that likely go beyond what the law requires. The result is increased cost and delay, even in the absence of litigation.
At the same time, the consultants developers hire have no financial stake in the project and thus no reason to worry about the costs or efficiency of their recommendations. Their concerns push in the other direction: namely, that their failure to foresee an objection might be taken as a sign of professional incompetence. In effect, the system requires developers to fund objections to their own projects, even before any lawsuit or objection is filed, while the objectors are encouraged to widen the field of scrutiny regardless of cost. As Davies concluded, "[a]part from the objectors, everyone involved is trying to help, but the final, systemic and predictable consequence of their actions is the gradual sclerosis of the system."
Davies contrasted the British model with what he described as the more corporatist structure of continental European planning processes. In the corporatist ideal, the planning agencies take a much more active role in driving the process forward. Their primary task is not to adjudicate disputes, but to work with stakeholders and solve problems. Where issues arise, they can bring the developers and objectors together to reach some agreement. This greatly compresses the timeline of the permitting process relative to the British system, wherein both the anticipatory stage and the objecting stage can last for several years.
Davies argued that streamlining the way some objections are handled or removing a few sources of objections through management and discouragement reforms is unlikely to have a significant impact, since these solutions don't dismantle the permitting process's structure. That structure, he contended, is a "problem factory" that incentivizes dissenting parties to raise new objections to replace those that have been resolved and to find new sources of delay for old ones that have been cleared away. Ambiguous language — and there are always ambiguities in permitting statutes, particularly as applied to the unique details of an individual project — together with creative lawyering and a decentralized legal system in which judges are free to embrace novel legal arguments, ensures the problem factory is always churning. Meanwhile, agencies-as-neutral-adjudicators must keep their distance and await the filing of formal disputes.
REPLACEMENT PERMITTING
Is there a way to move the American permitting system away from adversarial legalism and closer to the corporatist structure Davies admired?
The third reform approach, replacement, attempts to supplant an adversarial legal policy with a different decision-making mechanism. The most prominent replacement reforms have been in the field of personal injury, starting with workers'-compensation laws in the early 20th century that replaced workplace-injury lawsuits between employers and employees with state-based insurance systems. Other examples include the National Vaccine Injury Compensation Program, the federal September 11th Victim Compensation Fund, and state no-fault auto-insurance laws.
In each of these reforms, some kind of insurance fund replaces personal-injury lawsuits as a means of compensating victims for death and disability. Compared to the tort-lawsuit system, this streamlines decisions about compensation and yields a more centralized, regularized decision-making process. This kind of regime is more predictable and less costly than an adversarial-legal one, benefiting plaintiffs and defendants alike.
An analogous replacement reform for the current permitting regime might similarly offer advantages to both developers and objectors. A more centralized system, with more strenuous but also more predictable environmental standards, would yield something more akin to Davies's corporatist structure. The new agencies in such a system would need sufficient staff and resources, as well as the power to assemble all the constituencies to deliberate over projects. Agency approval would need to carry some weight; a court's ability to overturn an agency's decision would need to be limited to extreme cases, as in an "abuse of discretion" standard.
Enacting such a reform would not be easy. Typically, replacement reforms pass during crises associated with adversarial legalism, such as the proliferation of worker-injury lawsuits in the late 19th century, the purported shortage of childhood vaccines in the 1980s, or the financial precarity of the airline industry after the September 11th attacks. These crises presented brief windows of opportunity for radical reform.
One example of replacement permitting reform, admittedly exceptional and limited in scope, demonstrates the political power of a crisis. On June 11, 2023, a tanker truck filled with gas overturned on an exit ramp just below I-95 on the outskirts of Philadelphia, creating a fire so hot it caused a section of the freeway to collapse. Experts warned Pennsylvania governor Josh Shapiro that it would take months to clear the regulatory hurdles to rebuild the highway, but he pushed back. Shapiro declared a state of emergency that waived several bureaucratic requirements, fast-tracked other permitting processes, and leveraged engineering and other professional expertise. He also empowered officials at the building site to make decisions and keep the process moving forward. As a result, a temporary rebuild of the highway was finished in just 12 days.
As a parable of permitting reform, the "Philadelphia Story" can be a bit misleading. Rebuilding a highway is much more straightforward politically than building something new, and it turns out that this was just one of several instances in which American roadways were quickly restored after a disaster. Nevertheless, the episode illustrates what can happen when a crisis temporarily generates sufficient urgency to replace the permitting system with a streamlined alternative. That urgency, together with Governor Shapiro's leadership, legitimized a radically different, albeit provisional, process.
While exceptional circumstances and skillful political sponsors seem necessary to establish replacement reforms, they do not guarantee success. Even in politically promising situations, it remains challenging to get groups associated with plaintiffs and defendants to agree on what reform should look like. Conversely, it is easy for lawyer interest groups — who usually oppose replacement reforms the most intensely — to sow distrust about how a new system might operate.
Moreover, creating a new authority with the power to make decisions that courts cannot easily overrule runs against the American distrust of centralized power. It feels dangerous to give anyone in government such power, and undemocratic to deny those dissatisfied by a decision their day in court. Indeed, Americans seem so inured to adversarial legalism that they find it hard to imagine any just alternative, even when the excesses of adversarial legalism are plain to see.
The grip of adversarial legalism on the American political imagination appears in academic commentary on the Oakland dredging saga. It's hard to imagine a case that better illustrates the pathologies of adversarial legalism. Yet in 1999, Christopher Busch and his colleagues revisited the story, arguing that for all its messiness, the process was just. They concluded:
Introducing multiple voices into the process typically causes delay in reaching decisions...but delay is not necessarily a bad thing. In the Port of Oakland case, for instance, the initial professional judgment to dump hundreds of tons of toxic materials into San Francisco Bay would have done great environmental damage. The search for additional options, begun only when those outside the government and Port effectively compelled it, must be reckoned a benefit even though it made dredging more expensive....[W]hile participatory democracy can be costly and inefficient from the standpoint of process alone, the overall results may surpass those achieved by relying mainly on bureaucratic expertise.
Echoes of this argument can be found in permitting-reform debates. Law professor David Adelman and his colleagues argued that the central obstacle to more efficient permitting is not adversarial legalism, but a lack of agency resources. From this perspective, proposals to replace adversarial legalism are misplaced and overlook its benefits, especially its capacity to legitimate government permitting decisions:
[P]arties turn to litigation because they want to ensure the law is upheld. Access to the courts benefits all of society by clarifying legal standards, protecting the rights of interested parties, and fostering trust in government through independent judicial oversight. Litigants who believe that they have "had their day in court" can often accept a fair decision, even if they dislike the outcome. Permit reform proposals that seek to close the door to the court house risk losing these benefits.
How can a democracy, Adelman and his colleagues ask, deny citizens their day in court?
Of course, most democracies do just that, including many democracies that outperform the United States on standard measures of environmental protection. Americans might be surprised to learn that despite our strenuous permitting procedures and innumerable lawsuits, comparative data — for example, Yale University's widely cited index of environmental performance — suggest that the United States is not a top protector of the environment.
Kagan, in his rebuttal to the reappraisal of the Oakland case, drew on a revealing comparison: the dredging of Europe's largest port, located in Rotterdam. That project presented arguably steeper challenges than the one in Oakland, as the Rotterdam seafloor contained even more toxic materials than the Oakland Bay. The Dutch also have stringent environmental standards, laws that require detailed impact analysis and mitigation plans, and well-organized environmental groups poised to ensure compliance. But unlike the United States, the Netherlands has government agencies that take a much more active role in permitting. This created a more contained, centralized planning process in which the state could work with all the constituencies involved to solve problems.
The result, according to Kagan, was that the Rotterdam harbor was dredged in an environmentally sound manner, without years of litigation and political conflict. In the United States, where no governmental entity was empowered to take on this role, the process ping-ponged between federal, state, and local authorities. The resulting delay of nearly a decade proved costly: As the Oakland Harbor silted up, firms using the port suffered millions of dollars in extra operating costs, shipping delays rippled across the country, some 40,000 port-related jobs were put in peril, and the port lost market share — a blow to the local economy.
The Oakland and Rotterdam dredging stories are of course just two stories, now decades old. But research comparing the costs of building infrastructure across affluent democracies suggests they are not isolated cases. The Organization for Economic Cooperation and Development's 2023 "Environmental Performance Review" of the United States highlighted the importance of rebuilding American infrastructure, noting that this will require "robust" collaboration across agencies and levels of government. A "main factor" slowing rebuilding? The cumbersome American permitting process.
SEEKING LEGITIMATE AUTHORITY
In the late 1950s, as the Warren Court's rights revolution gained momentum, legal philosopher Lon Fuller warned of the unintended consequences of using courts to make policy. He noted that individual rights and adjudication transform complex, multi-faceted "polycentric" problems into "dyadic" disputes between individuals. The result is a system of individual-rights holders with contending legal claims that courts adjudicate, as opposed to a world of groups seeking common ground and bargaining for public goods in administrative or legislative arenas.
Fuller's warning was prophetic. Since the turn to the courts was made, it has been hard to reverse course, as groups internalize litigious approaches to social issues and grow adept at filing suit. Even when sweeping replacement reforms happen, maintaining them is difficult, as seen in the notorious case of state workers'-compensation programs, which have grown more adversarial and legalistic over time.
In sum, the proceduralism that Bagley rightly saw as a major obstacle for abundance liberals 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, and an array of studies has demonstrated the downsides of adversarial legalism, fundamental reform has proven difficult to enact and hard to sustain. Adversarial legalism's political power lies in American distrust for what it displaces, namely more centralized forms of expert, bureaucratic, and political authority.
A liberalism that builds must grapple with what makes adversarial legalism so tenacious: its decentralized nature, its participatory veneer, and its proponents' significant political influence. For those who seek to reform the use of litigation in American public policy, the overriding challenge is to find ways to create more centralized forms of political authority that Americans can accept.
