ABSTRACT
Adversarial legalism is a double-edged sword. It can cut through seemingly impenetrable complexities to isolate problems, but it can also lead to endless quagmires (Kagan, 2001). And it can do both at the same time. Both the strengths and the weaknesses of adversarial legalism are found in litigation concerning prison conditions and inmate rights. The federal courts have been perhaps the single most important source of improvements in prisons in the United States over the past 50 years, but litigation has failed to institutionalize many of its most important victories. This chapter considers the continuing challenges confronting legislators, administrators, judges, lawyers, and other policymakers as they think about how to institutionalize structural reforms pressed by the courts. Interestingly, in the areas of concern of this study, it is not the courts that have generated the problems of hyper-legalism that correctional institutions now confront. Rather, it is the prisons’ own failure to adopt strong institutional structures that allow them to escape the debilitating and seemingly endless cycle of protracted litigation. The California prison system has managed to defang some of the more powerful and heroic aspects of adversarial legalism while retaining or even exacerbating its most troublesome features. Moreover, it has failed to diffuse down to each individual prison a coherent system of operating rules—a failure of bureaucratic legalism within the prison system itself.
