IDEAS home Printed from
   My bibliography  Save this paper

American and European Ways of Law: Six Entrenched Differences


  • Kagan, Robert A.


In the wake of intensified global economic competition, economic liberalization, waves of immigration, and the rise of European Union governance, many observers suggest that there has been a sharp diminution of the long-standing differences between hierarchically-organized European legal processes and the more fragmented, malleable “adversarial legalism†of the United States. It is not easy to find meaningful quantitative indicators of convergence (or of continued divergence) in systems as complex and multi-faceted as contemporary legal systems. I argue, however, that six salient features of the American way of law have not emerged and are unlikely to emerge in European legal systems. Two of these differences are structural or procedural: (1) the political nature and powerful remedial powers of American judiciaries; (2) the high levels of adversarial legalism in the American regulatory process. The next four differences are substantive, relating to differences in the content of bodies of law that are central to the experience of citizens: (3) laws and institutional practices that make American tort law uniquely threatening; (4) the more limited rights to social provision and employee protections that prevail in American law; (5) the less demanding obligations of American tax law; (6) America’s more punitive criminal sanctions, more permissive gun laws, and greater reliance on adversarial legalism in criminal adjudication and police accountability. These six differences are not likely to narrow significantly, I will argue, since they are rooted in the distinctive features of American and European political structures, political belief systems, and legal cultures.

Suggested Citation

  • Kagan, Robert A., 2006. "American and European Ways of Law: Six Entrenched Differences," Institute of European Studies, Working Paper Series qt3kt912b3, Institute of European Studies, UC Berkeley.
  • Handle: RePEc:cdl:bineur:qt3kt912b3

    Download full text from publisher

    File URL:;origin=repeccitec
    Download Restriction: no


    Citations are extracted by the CitEc Project, subscribe to its RSS feed for this item.

    Cited by:

    1. Ragnar E. Lofstedt, 2007. "The 'Plateau-ing' of the European Better Regulation Agenda: An Analysis of Activities Carried out by the Barroso Commission1," Journal of Risk Research, Taylor & Francis Journals, vol. 10(4), pages 423-447, June.
    2. Lisa Conant, 2007. "Review Article: The Politics of Legal Integration," Journal of Common Market Studies, Wiley Blackwell, vol. 45, pages 45-66, September.


    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:cdl:bineur:qt3kt912b3. See general information about how to correct material in RePEc.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Lisa Schiff). General contact details of provider: .

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    We have no references for this item. You can help adding them by using this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service hosted by the Research Division of the Federal Reserve Bank of St. Louis . RePEc uses bibliographic data supplied by the respective publishers.