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It was harder to challenge governmental and economic power, and power was not always benign. Racial, ethnic, and gender discrimination usually went unchallenged. Government controls on pollution were weak or nonexistent. Many regulatory agencies were soft on the industries they were supposed to control. Citizens, especially poorer citizens, often had little recourse when highways were thrust through their neighborhoods, when chemical waste sites were located near their homes, or when policemen, school principals, or bureaucrats treated them arbitrarily.

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. In the Port of Oakland case, adversarial legalism’s legal flexibility—which in the Alabama prison case permitted a bold judge to create new rights and remedies—produced only a legal mess. The governing body of law, detailed and complex, generated only uncertainty, inconsistency, and legalistic defensiveness.

Armed with tools provided by the uniquely adversarial American pretrial and trial processes, the prisoners’ rights lawyers could investigate and bring to light the hidden malpractices of closed institutions. As a result of recurrent successes of that kind in a wide variety of types of cases, adversarial legalism energizes the American legal profession as a whole; hence American lawyers are far more entrepreneurial and aggressive than their counterparts in other democracies (Osiel, 1990). Similarly, because hierarchical constraints on American lower court judges are looser than those that prevail in other judiciaries, individual judges, such as J.

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