DISTINCTIVE FEATURES OF AMERICAN LAW

The legal systems of the United States and Western European nations are more similar than they are different. By and large, the same fundamental individual and political liberties, concepts of equal treatment, and judgements about socially reprehensible behaviour are enshrined in the laws of both continents. What, then, might one mean by the 'Americanisation' of European law? I will define it as the adoption by Western European countries of laws, legal practices, and legal frameworks that had been adopted in the United States significantly earlier and that represent significant departures from long-standing European legal traditions. Which laws and practices might be considered 'distinctively American'?

To begin, consider two clusters of substantive laws. First, compared to the United States Western European governments in the last forty years have provided a more generous array of legally guaranteed rights to social welfare benefits, healthcare, and employee protections and benefits (such as minimum wage levels, restrictions on dismissal, severance pay, unemployment benefits, vacation pay) (Wilensky, 2002; Kagan, 2001). Concomitantly, personal income tax rates in the US generally have been lower than in Western European countries (Steinmo, 1993), as have sales taxes (most notably, the EU value-added tax, taxes on gasoline, and cigarette taxes). The United States has relied much more on local property taxes for municipal services and public education (which creates growth incentives that lead to much weaker regulation of 'urban sprawl').

Second, American law imposes more severe legal sanctions. Civil and criminal penalties for violations of regulatory laws are more punitive in the United States (Kagan, 2001: chapter 9), as are civil damage awards in personal injury cases, due to significant differences in tort law and in government-guaranteed rights to medical care (Schwartz, 1991; Kagan, 2001: chapter 7). The US has also been distinctive in enabling entrepreneurial

'The legal systems of the United States and Western European nations are more similar than they are different'.

lawyers to aggregate many individual tort claims into a single class action, not infrequently demanding millions of dollars in damages. Thus there has been no counterpart in Europe to the American 'tort industry' or to the gigantic asbestos class actions that have driven tens of corporations into bankruptcy. Finally, criminal penalties in the United States are much harsher, not only with respect to the use of capital punishment (Zimring and Hawkins, 1997: 33–9) but also for the whole range of felonies, the sale of psychoactive drugs (Whitman, 2003), and punishment of infractions such as disorderly conduct, prostitution, and public drunkenness (Kagan, 2001: chapter 4).

Another salient legal contrast is procedural. The United States has developed a distinctive 'legal style' – a way of implementing public policies, crafting and enforcing laws and regulations, conducting litigation, adjudicating disputes, and empowering courts. American laws generally are more detailed, complicated, and prescriptive. American methods of litigating and adjudicating legal disputes are much more adversarial and costly. Legalistic (as opposed to cooperative) enforcement and judicial review of administrative decisions is much more prevalent in American regulatory programmes. American judges generally have been bolder in scrutinising and ordering changes to governmental plans, institutional practices, and decisions. Interest groups in the United States, consequently, more often use courts as an alternative political forum for seeking policy goals. American civic, economic, and political life is more deeply pervaded by legal conflict and by political controversy about regulations, judicial decisions, judicial selection, and legal processes. Most of these generalisations reflect the recurrent findings of socio-legal studies that compare a particular legal, governmental, or regulatory process in the United States with parallel processes in other economically advanced democracies (Bogart, 2002: 14; Kagan, 2001: chapter 1).

These distinctive qualities of governance and legal process reflect what I call 'adversarial legalism' – a mode of policy implementation and dispute resolution that encourages lawyer-dominated litigation (ibid.). Organisationally, adversarial legalism is associated with decision-making institutions in which authority is fragmented and in which hierarchical control is relatively weak. Adversarial legalism reflects deliberate government encouragement of litigation and judicial action to help implement public policy, from the promotion of equal employment opportunity and environmental protection to the control of malpractice by physicians, police, business firms, schools, electoral commissions, and other government agencies. At the level of dispute processing, the assertion of claims, the search for controlling legal arguments, and the gathering and submission of evidence is dominated not by judges or governmental officials but by disputing parties, acting primarily through lawyers. This adversarial approach is institutionalised through a diverse, politically selected judiciary, armed with significant law-making and remedial powers; a highly entrepreneurial legal profession (including public interest law firms), empowered by wide-ranging rights to pre-trial discovery; and a mode of legal education that stresses legal advocacy, creativity, and an instrumental view of law (Kagan, 2001: 55–7).

SOURCES OF AMERICAN LEGAL DISTINCTIVENESS

Are those distinctive features of American law likely to find their way into the legal systems of Western European countries? We can begin by asking why the United States adopted them. Prominent among the reasons is a political tradition that is pervaded by mistrust of concentrated power, both governmental and economic (Lipset, 1996: 21), and by a corresponding propensity to fragment power and to constrain it by law and courts (Kagan, 2001; Jacob et al, 1996). Compared to Western European governments, chief executives at every level of government in the US share more power with legislatures. Legislative party leaders share more power with subcommittee chairs and back-benchers. Administrative agencies share more power with judges, judges with lawyers and juries (Kagan, 2001). Professional governmental bureaucracies were much slower to develop in the United States than in Europe (Skowronek, 1982), and more faith has been placed in courts as protectors of individual rights, checks on government, and makers of law.

Adversarial legalism also stems from the fragmentation of economic power. Compared to Western Europe, American government has fostered a more intensely competitive brand of capitalism, corporate ownership, and finance (Roe, 1991). Hence coordination and control of business behaviour has been provided more by court-enforceable contract law than by government dominance, large banks, or cartels. The American business community has been more inclined to battle government regulation in the courts (Vogel, 1986), which in turn has spurred populist demands for more legalistic regulation and more punitive legal sanctions, including tougher tort law.

The United States has never had the kind of strong socialist or centre-left political party, dominated by organised labour union federations, which – whether in office or competing for it – gave Western European governments incentives to enact strong legal protections for labour and social benefit programmes. Consequently, American business–labour relations have been more decentralised and 'privatised', US labour law does not mandate European-style nationwide rights (Rogers, 1990; Kagan, 1990), and American tax rates and revenues have generally been lower (Wilensky, 2002). Employee pension plans, workplace-injury insurance, and healthcare provision historically have been left far more fully to the private sector than in European welfare states, so that litigation over benefits and coverage almost certainly has been far more common in the US.

Finally, in the last forty years, political pressures for more active government have intensified American adversarial legalism (Kagan, 2001: 35–7). Beginning in the 1960s, political movements and advocacy groups demanded increasingly comprehensive governmental protections from racial discrimination, environmental degradation, hazardous technologies, arbitrary treatment by police and governmental bureaucracies, and so on. Responding to these political demands required a more powerful, more activist central government – which conflicted with a political tradition of limited, decentralised government. Adversarial legalism provided a way of reconciling, however roughly, these inconsistent political desires. Advocacy groups seeking new rights turned to the courts, and politically responsive American judges often read those rights into the common law, statutes, and constitutional provisions. Politicians enacted statutes that granted administrators more power (including tough legal sanctions); but fearing political bias by agencies – federal, state, and local – they constrained agencies' discretion with detailed rules and procedural requirements, while empowering regulated entities and NGOs to challenge administrators' decisions in court (Melnick, 2004). In sum, American judges and politicians have substituted lawsuits, formal procedures, rights, tough legal penalties, lawyers, and courts – the building blocks of adversarial legalism – for the powerful bureaucracies, corporatist bodies, central banks, and social insurance programmes that have dominated the regulatory welfare state in Western Europe.

PRESSURES FOR 'AMERICANISATION' IN EUROPEAN LEGAL SYSTEMS

The more European governments and economies come to resemble the American political economy, the more incentives they should experience to mimic American laws and legal practices (Kagan, 1997). The EU and global competition have indeed been pushing the political economy of Western Europe in that direction. A system of corporate finance dominated by large banks and interlocking corporate groups has been eroded by a trend towards more fluid, public finance and restructuring (Coffee, 1991). The deepening of the common market increased the diversity of products/service markets. Pressures for greater efficiency fuelled an EU-wide trend towards privatisation of telecommunications, rail and air transportation, health insurance, retirement funds (OECD, 2005a: 14–15) – functions that have long been relegated to competitive markets in the US.

Adversarial legalism increased in the US when the intensification of global competition led to rapid shifts in trade relationships and financing arrangements, engaging larger numbers of companies, domestic and foreign. In Europe, too, according to Kelemen and Sibbitt (2004: 109), intensified competition has undermined informal member-state systems of regulation based on insider networks and trust, making EU and member-state regulatory systems somewhat more legalistic. Several authors have pointed to the growth of legal techniques that lean towards methods pioneered in the US – more legalistic financial and public utility regulation (Moran, 1991; Pitt and Hardison, 1992; Vogel, 1996); aggressive lawyering in commercial litigation and arbitration (Garth and Dezelay, 1995; Kelemen and Sibbitt, 2004: 114–5); detailed, defensively written contracts (Wiegand, 1996: 139), and, more tentatively, shareholder and consumer class actions against corporations (Tait and Sherwood, 2005). Similarly, intensified competition, along with demographic changes, has increased pressures on member states to reduce the cost of social welfare programmes and increase the flexibility of labour markets – raising fears of a shift towards the less generous and protective 'American model'.

In the realm of public law, I noted earlier that adversarial legalism has increased in the US in recent decades because of the tension between (a) intensified political demands for governmental action and (b) a structurally fragmented governmental system. The government of the EU, too, has faced political demands to promulgate community-wide norms in a growing array of policy areas. But as in the US, political authority in the EU is fragmented. Moreover, the EU government does not have its own local-level enforcement bureaucracy or courts. Hence, much like the US Congress and the US Supreme Court, the European Commission and the European Court of Justice (ECJ) have encouraged private claims in member-state courts for violations of EU Directives and some EU regulations (Stone Sweet, 2000: 161–5). And EU directives (like the regulatory statutes enacted by the US Congress in the 1960s and 1970s) have become more prescriptive, encouraging a more adversarial and legalistic approach to enforcement (Kelemen and Sibbitt, 2004: 110).

At the same time, the growing power of high courts in European countries – as enforcers and elaborators of national constitutional rights and of rights articulated by the EU Commission, the ECJ and the European Court of Human Rights – has fragmented authority in EU member states, undermining unquestioned parliamentary (and hence national bureaucratic) sovereignty (Stone Sweet, 2000), while giving member-state judges an opportunity to play a larger role in the shaping of law and individual rights (Lasser, 2005; Malleson, 2006).

IMPEDIMENTS TO LEGAL CONVERGENCE: WHY EUROPEAN LEGAL SYSTEMS WILL NOT BE 'AMERICANISED'

Pressures for significant changes in public policies and modes of implementation typically encounter counter-pressures engendered by 'path dependency' (Pierson, 2001). Legal and policy elites and policy advocates who benefit from and value existing ways of law try to prune proposed legal transplants to mesh with existing arrangements. Hence the changes in political economy that have generated American legal distinctiveness, even if now operating in Europe, encounter there traditions and interests that are likely to impede and redirect movement towards Americanisation of European law.

One such impediment is the tenacity of European national, political, and legal cultures (Kagan, 1997). In terms of substantive law, the political cultures of most Western European nations continue to emphasise the values of social solidarity embodied in the legal guarantees of the welfare state and employee security, as does the European Commission, which explicitly endorses 'the European Social Model' (European Commission, 2005; Diamontopoulou, 2001) rather than the neo-liberal 'American model' and the harshness of American penal law. In terms of legal style, the scepticism concerning governmental and legal authority that animates adversarial legalism in the US is antithetical to the ideals of bureaucratic legalism that undergird most European lawyers', judges' and legal scholars' assumptions about law, legal ordering, regulation, and adjudication (Damaska, 1986; Chase, 2005: 67; Greve, 1989). Consequently, although European countries may well continue to experience higher levels of litigation, they have not adopted – and are not likely to adopt – methods of litigation and adjudication that closely resemble those of American adversarial legalism.

A second impediment is the tenacity of the political structures of EU member states, particularly strong social democratic parties and respected national policy-making and policy-implementing bureaucracies. In implementing EU directives, political party leaders and top member-state bureaucrats have strong incentives to employ accustomed, predictable methods of policy-making, policy-implementation, and dispute resolution rather than the difficult-to-control, less-predictable methods of adversarial legalism. And lacking the US federal government's direct electoral legitimacy, taxation powers, and fiscal leverage over state governments, the EU's relationship with member states is likely to remain more cooperation-seeking (Ashiagbor, 2005, 2001; Trubek and Mosher, 2003), its directives less prescriptive than those of the US federal government – which limits the role of litigation and courts in controlling how member-state bureaucracies interpret and implement EU policy.

I feel reasonably confident, therefore, in predicting that the following prominent features of American law will not be welcomed into the legal and regulatory systems of European countries.

'...the changes in political economy that have generated American legal distinctiveness, even if now operating in Europe, encounter there traditions and interests which are likely to impede and redirect movement toward Americanization of European law'.

THE POLITICAL NATURE AND REMEDIAL POWERS OF AMERICAN JUDICIARIES

In contrast to the EU, the US central government has its own nationwide network of lower federal courts, armed with powerful remedial powers, enabling them to order highway construction agencies, local school districts, prison systems, police departments, and federal forestry agencies, among others, to undertake specific (and often costly) reforms or mitigation projects, under continuing judicial supervision (Melnick, 2004; Sandler and Schoenbrod, 2003). This invites policy-oriented litigation, as does the political character of American state and federal judiciaries. In sharp contrast to European practice, American judges are recruited on the basis of their prior partisan political experience and commitments. Their judicial philosophy tends to be more overtly policy-oriented or 'instrumental' than European judges (Atiyah and Summers, 1987: 404). Consequently, compared to Western Europe, the United States has a far larger network of politically motivated 'cause lawyers', organised to influence public policy, public administration, and corporate behaviour through litigation. Political interest groups openly lobby for appointment of politically sympathetic federal judges and spend very large sums on partisan elections for state supreme court positions. Although political considerations have been increasing somewhat in the selection of judges for the ECJ and some powerful member-state constitutional courts (Guarneri and Pederzoli, 2002; Bohlander, 2005), Western European countries are not likely to abandon their professional modes of judicial selection and training for an American-style, overtly political appointment or election process.

ADVERSARIAL LEGALISM IN THE REGULATORY PROCESS

EU regulatory policy-making in Brussels concentrates on structuring information-sharing and consultation between agency experts, affected interests, and member states; but it consciously seeks to exclude US-style judicial challenges (Strauss, 2007). Member states, with a different conception of bureaucratic autonomy and professionalism, are even less likely to mimic the frequency and intensity of court scrutiny of regulatory decision-making in the US (Kagan, 2004: 18; Badaracco, 1985) or the American regulatory enforcement style, which remains more prescriptive, complex, confusing, punitive towards violations, heavily lawyered, and costly to comply with than parallel regulatory regimes in Western European nations (Kagan and Axelrad, 2000; Greve, 1989; Burke, 2004: 159, 170).

THE HYPERACTIVE AMERICAN TORT LAW SYSTEM

Notwithstanding American state legislation imposing some limits on tort damage awards, and changes in tort law in Ireland, the UK, and France (Fleming, 2005), cross-Atlantic differences in tort systems remain enormous (Blankenburg, 2001: 21–2). Much higher money damages (Sugarman, 2006: 418; Sebok, 2006: 392), together with the widespread use of contingency fees and aggregation of similar cases in large class actions (both still disallowed or uncommon in Western Europe) make the practice of tort law in the US much more lucrative for plaintiffs' attorneys and fearsome for business firms, medical providers, and governmental bodies, while remaining an erratic, inefficient, and inequitable way of compensating injured people (Kagan, 2001: 135–44). It is an unlikely model for European governments, business interests, or legal scholars to emulate.

THE MORE LIMITED RIGHTS TO SOCIAL PROVISION IN THE UNITED STATES

Despite the talk of a new 'age of austerity' in the European welfare state, academic analysts have characterised recent Western European changes in entitlement laws as efficiency-enhancing reforms, rather than as massive retrenchment or movement towards neo-liberalism and the American model (Pierson, 2001; Levy, 2006). The reasons lie in the strength of the broad political constituencies that benefit from existing social welfare and employee protections (Pierson, 2001). Indeed, the most significant change in the last decade has been the shrinkage of protections provided by the more privatised American healthcare and employee benefits systems (Hacker, 2004, 2002), so that the gulf between Western Europe and the US in this area of law has widened (Adema, 2005: 10; Jaumotte, 2003; OECD, 2003a).

THE LESS-DEMANDING AMERICAN TAX LAWS

Since 2000, according to the OECD (2003b), fifteen OECD countries reduced their top rates for personal income taxes; twelve lowered them for corporations. But European governments continue to face strong political pressures to maintain social entitlements, while in the US a conservative American president and Congress have aggressively cut federal income tax rates further. Hence in 2002, tax revenues in the United States equalled about 29 per cent of GDP, compared to 40 per cent in Sweden, Denmark, Finland, Denmark, The Netherlands, Belgium, France, and Italy; only Ireland (the most economically dynamic Western European country) was at the US level.

PUNITIVENESS AND ADVERSARIAL LEGALISM IN AMERICAN CRIMINAL JUSTICE

As crime rates and fear of crime has grown (Downes, 2001: 60), crime has become a salient political issue in many European countries; imprisonment rates in the UK and the Netherlands have increased (Greenberg, 2001: 74). Nevertheless, the US remains in a league of its own in terms of the severity of penal policy, rates of imprisonment (OECD, 2005b; Downes, 2001: 65–6), the harshness of cultural attitudes towards punishment (Whitman, 2003), and the extent to which penal policy-making is open to populist political pressures to be 'tough on crime' (Kagan, 2001: 69–70, 80–1). In terms of the criminal process, European nations accustomed to professionally selected national prosecutorial bureaucracies are not likely to adopt the far more political and decentralised American prosecutorial system (Frase, 1990; Downes, 1988: 15; Johnson, 1998)

'...due to national traditions of "bureaucratic legalism" and parliamentary government, increases in law, litigation and judicialization in Western Europe do not imply comparable increases in American-style adversarial legalism'.

or the adversarial American jury trial, whose costs and cumbersomeness have made it unworkable as an everyday mode of adjudication (Alschuler, 1986). In a study of the introduction of plea bargaining in Germany, Italy, and France, Langer (2004) found that none of these changes resemble the American model, either because such ideas threatened the traditions and norms of legal professionals or because of the European systems' 'differing legal culture'.

CONCLUSION

In the legal systems of Western European countries, litigation and judicial decisions have become more prominent features of governance, regulation, policy development, and dispute resolution. Global economic competition, migration, fiscal pressures, and the challenges of coordinating law and policy throughout the EU have encouraged those trends and probably will continue to do so. Law and legal practice in Europe may well come closer to resembling American styles of contracting, corporate financial regulation, and controls on private pension funds – partly because they are well adapted to a highly competitive, privatised economy. Yet due to national traditions of 'bureaucratic legalism' and parliamentary government, increases in law, litigation, and judicialisation in Western Europe do not imply comparable increases in American-style adversarial legalism. In substantive law, any drift towards American-style neo-liberal labour, social welfare law, and tax law traditions is likely to be limited by the broad political interests entrenched by years of solid welfare state and worker-protective policies. Hence, the six distinctive features of American law summarised above, and many others, are likely to remain unattractive to legal policymakers in European countries.

Notes

¹ This article is a condensed version of a paper prepared for the First European Socio-Legal Conference, Onati, Spain, 6–8 July 2005, to be published by the Onati Institute for Socio-legal Studies.

References

1. Adema, W. (2005) 'Babies and bosses', OECD Observer 248, 11, http://www.oecdobserver.org.
2. Alschuler, A.N. (1986) 'Mediation with a mugger: the shortage of adjudicative services and the need for a two-tier system in civil cases', Harvard Law Review 99: 1808–1859. | Article |
3. Ashiagbor, D. (2001) 'EMU and the Shift in the European Labour Law Agenda', European Law Journal 7: 311–330. | Article |
4. Ashiagbor, D. (2005) The European Employment Strategy: Labour Market Regulation and New Governance, Oxford: Oxford University Press.
5. Atiyah, P.S. and Summers, R.S. (1987) Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions, Oxford: Clarendon Press.
6. Badaracco, J.L. (1985) Loading the Dice: A Five Country Study of Vinyl Chloride Regulation, Boston: Harvard Business School Press.
7. Blankenburg, E. (2001) 'Indicators of growth of the systems of justice in Western Europe of the 1990s: the legal profession, courts, litigation and budgets', Working Paper, The World Bank, Washington, DC, http://www1.worldbank.org/publicsec
   tor/legal/comparativedata.rtf.
8. Bogart, W.A. (2002) Consequences: The Impact of Law and Its Complexity, Toronto: University of Toronto Press.
9. Bohlander, M. (2005) 'Judicial recruitment and promotion in Germany – an empirical study', Paper presented at the First European Socio-Legal Conference, International Institute for Sociology of Law, Onati, Spain, 6–8 July.
10. Burke, T. (2004) 'The European Union and the Diffusion of Disability Rights', in M. Levin and M. Shapiro (eds.) Transatlantic Policymaking in an Age of Austerity: Diversity and Drift, Washington: Georgetown University Press.
11. Chase, O.G. (2005) Law, Culture, and Ritual: Disputing Systems in Cross-Cultural Context, New York: New York University Press.
12. Coffee Jr., J.C. (1991) 'Liquidity versus control: the institutional investor as corporate monitor', Columbia Law Review 91: 1277–1368. | Article |
13. Damaska, M. (1986) The Faces of Justice and State Authority: A Comparative Approach to the Legal Process, New Haven: Yale University Press.
14. Diamontopoulou, A. (2001) 'The European social model: promoting economic and social progress', Speech of the Commissioner responsible for Employment and Social Affairs, Talinn, 19 March, http://europa.eu.int/comm/dgs/empl
    oyment_social/speeches/010319ad.pdf.
15. Downes, D. (1988) Contrasts in Tolerance: Post-War Penal Policy in the Netherlands and England and Wales, Oxford: Clarendon Press.
16. Downes, D. (2001) 'The Macho Penal Economy: Mass Incarceration in the United States – A European Perspective', in D. Garland (ed.) Mass Imprisonment: Social Causes and Consequences, London: Sage Publications.
17. European Commission. (2005) 'European values in the globalized world', Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. COM (2005), 525.
18. Fleming, C. (2005) 'Ireland curbs 'American Disease' – personal injury lawsuits', Wall Street Journal B1: 9.
19. Frase, R.S. (1990) 'Comparative criminal justice as a guide to American law reform: how do the French do it, how can we find out, and why should we care?', California Law Review 78: 539–683. | Article |
20. Garth, B. and Dezelay, Y. (1995) 'Merchants of law as moral entrepreneurs: constructing international justice from the competition for transnational business disputes', Law and Society Review 29: 27–64. | Article |
21. Greenberg, D. (2001) 'Novus Ordo Saeculorum? A Commentary on Downes, and on Beckett and Western', in D. Garland (ed.) Mass Imprisonment: Social Causes and Consequences, London: Sage Publications.
22. Greve, M.S. (1989) 'The Non-Reformation of Administrative Law: Standing to Sue and Public Interest Litigation in West German Environmental Law', Cornell International Law Journal 22: 197–244.
23. Guarneri, C. and Pederzoli, P. (2002) From Democracy to Juristocracy? The Power of Judges: A Comparative Study of Courts and Democracy, Oxford: Oxford University Press.
24. Hacker, J. (2002) The Divided Welfare State: The Battle Over Public and Private Social Benefits in the United States, New York: Cambridge University Press.
25. Hacker, J. (2004) 'Privatizing risk without privatizing the welfare state: the hidden politics of social policy retrenchment in the United States', American Political Science Review 98: 243–260. | Article |
26. Jacob, H., Blankenburg, E., Kritzer, H., Province, D.M. and Sanders, J. (1996) Courts, Law and Politics in Comparative Perspective, New Haven: Yale University Press.
27. Jaumotte, F. (2003) 'Female labour force participation: past trends and main determinants in OECD countries', Working Paper No. 376, OECD Economics Department.
28. Johnson, D. (1998) 'The organization of prosecution and the possibility of order', Law & Society Review 32: 247–308. | Article |
29. Kagan, R.A. (1990) 'How much does law matter? Labor law, competition, and waterfront labor relations in Rotterdam and U.S. ports', Law & Society Review 24: 35–69. | Article |
30. Kagan, R.A. (1997) 'Should Europe worry about adversarial legalism?', Oxford Journal of Legal Studies 17: 165–183. | Article |
31. Kagan, R.A. (2001) Adversarial Legalism: The American Way of Law, Cambridge: Harvard University Press.
32. Kagan, R.A. (2004) 'American Courts and the Policy Dialogue: The Role of Adversarial Legalism', in M.C. Miller and J. Barnes (eds.) Making Policy, Making Law: An Interbranch Perspective, Washington: Georgetown University Press.
33. Kagan, R.A. and Axelrad, L. (2000) Regulatory Encounters: Multinational Corporations and American Adversarial Legalism, Berkeley: University of California Press.
34. Kelemen, R.D. (2006) 'Suing for Europe: adversarial legalism and European governance', Comparative Political Studies 39(1): 101–127. | Article |
35. Kelemen, R.D. and Sibbitt, E.C. (2004) 'The globalization of American law', International Organization 58: 103–136.
36. Langer, M. (2004) 'From legal transplants to legal translations: the globalization of plea bargaining and the Americanization thesis in criminal procedure', Harvard International Law Journal 45: 1–164.
37. Lasser, M. (2005) 'The European pasteurization of French law', Cornell Law Review 90: 995–1083.
38. Levy, J. (2006) The State after Statism: New State Activities in the Age of Liberalization, Cambridge, MA: Harvard University Press.
39. Lipset, S.M. (1996) American Exceptionalism: A Double-Edged Sword, New York: W.W. Norton.
40. Malleson, K. (2006) 'Judicial reform in the U.K.: the emergence of the Third Branch of government', Paper presented at the Conference on Reinventing Britain, Institute of Governmental Studies, University of California, Berkeley, 24 April.
41. Melnick, R.S. (2004) 'Courts and Agencies', in M.C. Miller and J. Barnes (eds.) Making Policy, Making Law: An Interbranch Perspective, Washington: Georgetown University Press.
42. Moran, M. (1991) The Politics of the Financial Services Revolution: The USA, UK and Japan, New York: St. Martins Press.
43. OECD. (2003a) 'Health at a glance: OECD indicators 2003. http://www.oecd/org/document/11/.
44. OECD. (2003b) 'Taxes ease', OECD Observer, December.
45. OECD. (2005a) 'When governments go shopping', OECD Observer, 14–15 November.
46. OECD. (2005b) OECD Factbook 2005, http://lysander.sourceoecd.org/vl=1
    623382/cl=45/nw=1/rpsv/factbook/.
47. Pierson, P. (ed.) (2001) The New Politics of the Welfare State, Oxford: Oxford University Press.
48. Pitt, H. and Hardison, D. (1992) 'Games without frontiers: trends in international response to insider trading', Law & Contemporary Problem 55: 199–230. | Article |
49. Roe, M. (1991) 'A political theory of American corporate finance', Columbia Law Review 91: 10–67. | Article |
50. Rogers, J. (1990) 'Divide and conquer: further reflections on the distinctive character of American labor laws', Wisconsin Law Review 1990: 1–147.
51. Sandler, R. and Schoenbrod, D. (2003) Democracy by Decree: What Happens When Courts Run Government, New Haven: Yale University Press.
52. Schwartz, G. (1991) 'Product Liability and Medical Malpractice', in P. Huber and R. Litan (eds.) Comparative Context. In The Liability Maze, Washington: Brookings Institute.
53. Sebok, A. (2006) 'Translating the immeasurable: thinking about pain and suffering comparatively', DePaul Law Review 55: 379–398.
54. Simmons, B. (2004) 'The International Politics of Harmonization: The Case of Capital Market Regulation', in D. Vogel and R.A. Kagan (eds.) Dynamics of Regulatory Change: How Globalization Affects National Regulatory Policies, University of California Press/University of California International and Area Studies, Berkeley, CA.
55. Skowronek, S. (1982) Building a New American State: The Expansion of National Administrative Capacities, 1877–1920, New York: Cambridge University Press.
56. Steinmo, S. (1993) Taxation and Democracy: Swedish, British and American Approaches to Financing the Modern State, New Haven: Yale University Press.
57. Stone Sweet, A. (2000) Governing with Judges: Constitutional Politics in Europe, Oxford: Oxford University Press.
58. Strauss, P. (2007) 'Rulemaking in the ages of globalization and information: what America can learn from Europe, and vice versa'. Columbia Journal of European Law, (forthcoming).
59. Sugarman, S.D. (2006) 'A comparative look at pain and suffering awards', Presentation at Clifford Symposium on Pain and Suffering. DePaul Law Review 55: 399–434.
60. Tait, N. and Sherwood, B. (2005) 'Europe gets taste of class actions', Financial Times, 20 June 2005.
61. Trubek, D. and Mosher, J. (2003) 'New Governance, Employment Policy, and the European Social Model', in J. Zeitlin and D. Trubek (eds.) Governing Work and Welfare in a New Economy: European and American Experiments, Oxford: Oxford University Press, pp. 33–58.
62. Vogel, D. (1986) National Styles of Regulation: Environmental Policy in Great Britain and the United States, Ithaca: Cornell University Press.
63. Vogel, S. (1996) Freer Markets, More Rules: Regulatory Reform in Advanced Industrial Countries, Ithaca: Cornell University Press.
64. Whitman, J.Q. (2003) Harsh Justice : Criminal Punishment and the Widening Divide between America and Europe, New Haven: Yale University Press.
65. Wiegand, W. (1996) 'Americanization of Law – Reception or Convergence', in L. Friedman and H. Scheiber (eds.) Legal Culture and the Legal Profession, Wesport: Westwood Press.
66. Wilensky, H. (2002) Rich Democracies, Berkeley: University of California Press.
67. Zimring, F. and Hawkins, G. (1997) Crime is Not the Problem: Lethal Violence in America, Oxford: Oxford University Press.

About the Author

Robert A. Kagan is Professor of Political Science and Law, University of California, Berkeley. His publications include Regulatory Encounters: Multinational Corporations and American Adversarial Legalism; Adversarial Legalism: The American Way of Law; Shades of Green (with N. Gunningham and D. Thornton); and Dynamics of Regulatory Change (with D. Vogel).