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American and European Ways of Law: Six Entrenched Differences

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  • Kagan, Robert A.

Abstract

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
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    1. Edward D. Mansfield & Helen V. Milner & B. Peter Rosendorff, 2015. "Why Democracies Cooperate More: Electoral Control and International Trade Agreements," World Scientific Book Chapters,in: THE POLITICAL ECONOMY OF INTERNATIONAL TRADE, chapter 11, pages 227-263 World Scientific Publishing Co. Pte. Ltd..
    2. Schultz, Kenneth A., 1999. "Do Democratic Institutions Constrain or Inform? Contrasting Two Institutional Perspectives on Democracy and War," International Organization, Cambridge University Press, vol. 53(02), pages 233-266, March.
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    4. Mansfield, Edward D. & Pevehouse, Jon C., 2006. "Democratization and International Organizations," International Organization, Cambridge University Press, vol. 60(01), pages 137-167, January.
    5. repec:cup:apsrev:v:88:y:1994:i:03:p:577-592_09 is not listed on IDEAS
    6. Leeds, Brett Ashley, 2003. "Alliance Reliability in Times of War: Explaining State Decisions to Violate Treaties," International Organization, Cambridge University Press, vol. 57(04), pages 801-827, September.
    7. Milner, Helen V. & Kubota, Keiko, 2005. "Why the Move to Free Trade? Democracy and Trade Policy in the Developing Countries," International Organization, Cambridge University Press, vol. 59(01), pages 107-143, January.
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