Professor Robert A. Kagan, Department of Political Science and School of Law, University of California, Berkeley, CA 94720-2150, USA. Email: firstname.lastname@example.org
Intensified global economic competition, economic liberalization, and the rise of EU governance have led some observers to argue that there has been a trend toward the “Americanization” of the European “way of law.” This article addresses that contention, focusing on legal change in European member states. It first describes ways in which the American legal tradition has differed most sharply from the national legal systems of Western Europe (including Great Britain) and the political and economic factors that account for this “American legal distinctiveness.” Similar political and economic factors currently are at work in Europe, the article acknowledges, creating incentives for legal convergence. But it also argues that European legal culture and the political organization of European national states generate path-dependent forces that impede European movement toward American ways of law, and it discusses six important differences between European and American law that remain entrenched and are unlikely to disappear.
Even in an era of accelerated globalization, contemporary legal systems still are rooted firmly in the nation-state. The laws and regulations that individuals and organizations must deal with – even those inspired by international or supra-national treaties and institutions – are drafted by domestic legislatures and administrative agencies. Judges, prosecutors, and police are selected and supervised by national and subnational governments. Distinctive national legal cultures, reproduced in law schools, courthouses, government bodies, and popular culture, are well entrenched. Scholars seeking to understand the dynamics of legal change must pay attention today, as they always have, to national politics, economics, culture, and legal thought.
Yet there is little doubt that globalization has impinged on the autonomy of national governments, pushing the legal systems of economically advanced democracies toward convergence in significant ways. An increasingly integrated, competitive international economy and demographic changes confront all rich democracies with similar social, economic, political, and environmental problems. Proposed legal solutions circulate in a global communications network. The European Union and international treaties demand cross-national harmonization of domestic laws on important aspects of pollution control, bank safety, human rights, public health, intellectual property, and much more. This is to be expected, according to Beth Simmons (2004), because in an increasingly interdependent world, when powerful polities such as the USA and the European Union (or important constituencies within them) suffer significant costs or disadvantages from divergent national laws and practices, they are likely to use international or supra-national institutions, as well as their own economic and political leverage, to push other nations to adopt the powerful polity’s legal standards.
Among convergence theorists, one special concern has been the alleged “Americanization” of law in Western Europe. The idea is that global competition, the European Union, and aggressive American businesses and law firms are compelling or inducing European nations to emulate neoliberal American laws and to adopt America’s adversarial, litigation-encouraging modes of governance (Garth & Dezelay 1995; Kelemen & Sibbitt 2004; Kelemen 2006), thereby eroding the “European Way of Law.” This article acknowledges the general direction of such changes, but strongly questions the extent to which they have led or might lead to convergence with the American “way of law,” particularly at the level of European nation-states, whose domestic legal systems and institutions still bulk large in the lives of individuals, business firms, and other organizations. In every European nation, I suggest, there are political factions, interest groups, and legal elites who would be disadvantaged or philosophically disturbed by adopting laws and legal ways that are characteristically “American.”1 They often fight hard against adopting such measures, or if prodded to do so by EU directives and court decisions, try to make them more congruent with national legal and administrative traditions. And, I will argue, there are many important and distinctive features of the American law and legal practice, both substantive and “stylistic,” that European countries are unlikely to emulate.
This is a large topic. Generalizing about entire legal systems, each of which is pervaded by complexity and contradictory features, is a risky business. It is doubly risky when one subject is the USA, with its many different jurisdictions and administrative agencies, and the other subject is the “legal systems of Western European nations,” each of which has its own distinctive traditions. The best available “data” on which to base comparisons are socio-legal case studies, which compare specific legal processes in the USA and one or two Western European countries. But these case studies provide an imperfect sample. Some are now 20 years old. Besides, there are not enough of them to provide a reliably representative picture of the entire legal landscape. Nevertheless, this article plunges incautiously ahead, using the readily available scholarly close-ups of particular clumps of trees to venture some wide-angle generalizations about the shape and dynamics of entire legal forests. Those generalizations must necessarily be tentative, however, illustrating the need for more richly descriptive, truly comparative socio-legal research, as well as more empirical studies of how the legal and regulatory institutions of European member states actually implement EU law and legal notions imported from the USA.2
Part I of this paper discusses the concepts of “legal convergence” and “Americanization” of European law. Part II identifies ways in which, despite many similarities in substantive legal norms, the USA historically has differed most sharply from the national legal systems of Western Europe (including Great Britain). Part III discusses the political and economic factors that account for this “American legal distinctiveness.” Part IV notes that those same political and economic factors currently are at work in Europe, creating incentives for – and some signs of – American “ways of law” in European national legal systems. Part V, however, discusses factors that impede European movement toward American ways of law, illustrated by several deeply entrenched differences between European and American laws.
I. On “legal convergence” and “Americanization”
For many years and in many ways, the legal systems of the USA and Western European nations have been more similar than they are different. Legal ideas continuously cross the Atlantic in both directions. The same fundamental individual and political liberties and concepts of equal treatment are enshrined in the laws of both continents. When a US tire manufacturer discovered that polyvinyl chloride fumes can cause liver cancer in exposed workers, regulatory officials in the USA and Western Europe (as well as Japan) quickly adopted roughly similar regulatory controls (Badaracco 1985). Two recent cross-national studies indicated that multinational corporations that conduct parallel business operations in the USA and in other Organization for Economic Co-operation and Development countries face similar environmental laws and make use of similar environmental control measures on both continents (Kagan & Axelrad 2000; Gunningham et al. 2003).
In light of the many points of legal convergence, what does it mean to refer to the “Americanization” of European law? For this article, I will define it as the adoption by Western European countries of laws, legal practices, and legal frameworks that had been adopted in the USA significantly earlier and that represent significant departures from long-standing European legal traditions. Thus defined, the “Americanization of European Law” would exclude many instances of legal convergence that emerge through nearly simultaneous adaptation to similar new problems. Rather, it refers to legal changes that represent sharp departures from those aspects of European law and legal practice that previously had been significantly different from American legal traditions.
Some important traditional differences between the USA and Western Europe have concerned substantive law; others entail differences in what might be called “legal style.” Proceeding, necessarily, at a high level of generalization, I will discuss each in turn.
A. American distinctiveness in substantive law
A detailed list of significant US–European legal differences would be quite long. At the risk of being too selective, I will point to two clusters of particularly salient legal contrasts.
1. Social provision, workers’ rights, and taxes
As often noted, in the last 40 years, Western European governments have provided a wider array of legally guaranteed rights to social welfare benefits and health care than those provided by American law (Kagan 2001; Wilensky 2002). Since World War II, the USA consistently has spent significantly less on legally guaranteed social benefits, as a percentage of gross national product (GNP), than Western European countries.4 In addition, government-legislated employee rights and benefits – minimum wage levels, restrictions on dismissal, severance pay, unemployment benefits, vacation pay – in the USA have long been significantly sparser than in most European countries (Abraham & Houseman 1993; Freeman & Katz, 1994; McFate 1995, p. 636; Gornick et al. 1997, p. 138).5
Concomitantly, the USA has long been near the bottom of the list of rich democracies in tax revenue as a proportion of GNP (Steinmo 1993). Personal income tax rates in the USA generally have been lower than in Western European countries, as have sales taxes (most notably, the EU value-added tax, taxes on gasoline, and cigarette taxes). The USA, however, has relied much more on local property taxes for municipal services and public education.
2. Legal sanctions
Compared with Western European nations, American law, state and federal, generally has called for (and imposed) more severe legal sanctions for violations – in civil, regulatory, and criminal laws. For example, in the USA, in contrast with European countries, tort law historically has enabled victims to recover full damages from their injurers, including future lost earnings and medical expenses, disregarding any amounts the plaintiff has or will receive from public or private insurance coverage.6 In addition, in most Western European tort law systems, non-economic damages – what Americans call “pain and suffering”– are assessed, not according to the discretion of lay juries, but by detailed judge-applied legal rules or schedules that, by American standards, provide only moderate amounts. Hence tort damages have been much higher in the USA, and incentives to file tort suits have been correspondingly greater (Schwartz 1991) The USA has also been distinctive in enabling entrepreneurial 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 either to the American “tort industry” or to the gigantic asbestos class actions that have driven tens of corporations into bankruptcy (although the rate of asbestosis in some Western European countries is higher than in the USA).
No European nation has authorized or imposed civil or criminal penalties for violations of regulatory laws as weighty as those imposed in the USA.7 In recent decades, criminal prosecution of corporate officers and prison sentences for environmental offenses have been quite common (Blabolil 1997; Kagan & Lochner 1998; Gunningham et al. 2005). The US Clean Air Act and the Toxic Substances Control Act authorize civil penalties of up to $25,000 per day for ongoing violations. US law has been distinctive, too, in authorizing and often imposing both criminal and large private civil sanctions for the same violation.8
Finally, American criminal law has provided for and imposed much harsher penal sanctions than Western European legal systems. Most famously, the USA stands alone among economically advanced democracies in using capital punishment (Zimring & Hawkins 1997, pp. 33–39), and for the whole range of felonies, American courts have doled out much longer prison terms than Western European courts (Lynch 1987; Frase 1990, p. 658; Selke 1991; Whitman 2003). American penal sanctions for the sale of psychoactive drugs, too, have been much more severe. Courts in the USA have been much more likely to impose jail sentences for “victimless” public-order infractions, such as disorderly conduct, prostitution, and public drunkenness (Frase 1990, pp. 569–570; Frase & Wiegend 1995, pp. 320–321).
B. Legal style: American adversarial legalism
Viewed in relation to Western European governments (including the UK), the USA has developed a distinctive “legal style”– by which I mean its way of making, crafting, and implementing laws and regulations, conducting litigation, adjudicating disputes, and using courts. American laws generally are more detailed, complicated, and prescriptive. American methods of litigating and adjudicating legal disputes are more adversarial and costly. Legalistic enforcement is much more prevalent in American regulatory programs. American judges generally are bolder in scrutinizing and reversing governmental plans, regulations, practices, and decisions. Interest groups in the USA, 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, legal processes, and institutions. These generalizations reflect the recurrent findings of socio-legal studies in the 1980s and the 1990s that compared a particular legal, governmental, or regulatory process in the USA with parallel processes in other economically advanced democracies.9
To encapsulate some of these distinctive qualities of governance and legal process in the USA, I use the shorthand term “adversarial legalism”– a mode of policy-making, policy implementation, and dispute resolution that encourages lawyer-dominated litigation. Organizationally, adversarial legalism is associated with decision-making institutions in which authority is fragmented and in which hierarchical control is relatively weak. At the level of litigation and adjudication, a key feature of adversarial legalism is litigant activism: 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 or interests, acting primarily through lawyers.
Adversarial legalism thus can be contrasted with “bureaucratic legalism”– a style of policy-making and dispute resolution in which legal authority and decision-making is hierarchically organized and disputants and their lawyers play a more restrained role. As Damaska (1986) so powerfully argued, it is that bureaucratic ideal that has traditionally animated Western European parliamentary regimes, modes of policy implementation, and adjudication. Yet even compared to the British “adversarial system” from which it descended, American adjudication is more party influenced, less hierarchically controlled (Hughes 1984), and more open to novel legal and policy arguments put forth by parties and their lawyers (Atiyah & Summers 1987).
Adversarial legalism also can be distinguished from modes of policy-making and dispute resolution that are hierarchically organized but not legalistic, because they vest authority in the informed discretionary judgment of professionals, political officials, administrators, or corporatist bodies that represent different segments of society. For example, in many Western European countries, decisions concerning disability benefits for injured workers are made by a panel of government-appointed physicians (or a mixed panel of physicians and social workers), in contrast with the adversarial American workers’ compensation tribunals. In contrast to the USA, where policy-making by regulatory agencies is structured by legally prescribed analytic standards, quasi-judicialized procedures, and the threat of judicial reversal, regulations in Western European countries traditionally have been worked out informally by technical experts and representatives of affected interests, with minimal participation by lawyers and infrequent appeal or reversal by courts (Badaracco 1985; Brickman et al. 1985; Vogel 1986).
Adversarial legalism, it must be emphasized, does not pervade the American legal order uniformly or completely. When legal and regulatory disputes emerge, most are resolved informally, through negotiation or bureaucratic processes. Litigation through adversarial legalism is so cumbersome, costly, and risky that it induces disputants to resolve most litigated disputes – civil, criminal, and administrative – before trial. But adversarial legalism, both as a set of legal structures and as a legal practice, has been far more common in the USA than in Europe. It has a powerful influence on administrative and governmental processes and shapes the character of negotiated legal settlements.
III. Sources of American legal distinctiveness
Are the differences between American and European law and legal style discussed above diminishing, or likely to diminish? My first step in venturing an answer is to provide a necessarily condensed account of the sources of American legal distinctiveness. Prominent among those sources is a political tradition that is pervaded by mistrust of concentrated power, both governmental and economic (Lipset 1996, p. 21), and by a corresponding propensity to fragment and limit power and constrain it by law and courts (Jacob et al. 1996; Kagan 2001). Compared with most Western European countries, the national government in the USA shares more power with states and municipalities. At every level of government, chief executives share more power with legislatures, legislative party leaders with subcommittee chairs and backbenchers. Administrative agencies share more power with judges, judges with lawyers and juries (Kagan 2001). Professional governmental bureaucracies were much slower to develop in the USA than in Europe (Skowronek 1982), and more faith was placed in courts as protectors of individual rights, checks on government, and, through the common law process, makers of law.
In the economic realm, too, government and corporate power has been especially fragmented. The Constitutional framers’ commitment to a nationwide “common market” empowered courts to block local economic protectionism, which fostered to a highly competitive brand of capitalism. American antitrust and banking laws fostered the development of a system of corporate ownership and finance that, viewed comparatively, has been particularly disaggregated and competitive (Roe 1991). The American business community, David Vogel (1986) has argued, historically has been less deferential to government than its counterparts in England and Western Europe and far more inclined to battle government regulation in the courts. The resistant business culture, in turn, has spurred populist demands for more legalistic regulation and more punitive legal sanctions, including tougher tort law.
Moreover, in contrast to most Western European countries, the USA has never had the kind of strong socialist or political party, dominated by organized labor union federations, which – whether in office or competing for it – gave Western European governments incentives to enact protective labor legislation, employee entitlements, and social benefit programs.10 That helps explain why business–labor relations in the USA have developed in a more decentralized, “privatized” way, why US labor law does not mandate comparable nationwide rights, and why competition from non-union firms has weakened labor’s hand in bargaining with unionized firms (Kagan 1990; Rogers 1990). Relatedly, analyzing 19 rich democracies, Harold Wilensky (2002) shows that higher national tax revenues are associated with the presence of (i) a consistently strong left-of-center political party or a strong Catholic party; and (ii) corporatist governance systems – both absent in the USA.
The American welfare state, too, has had a distinctively decentralized character. Employee pension plans, workplace-injury insurance, and health-care provision historically have been left far more fully to the private sector than has been true of European welfare states. As providers of these benefits and services in the USA are numerous private entities, many of them competing to cut costs, litigation in court over benefits and coverage almost certainly has been far more common in the USA.
Finally, in the last 40 years, political pressures for more active government have intensified American adversarial legalism (Kagan 2001, pp. 35–37). Beginning in the 1960s, political movements and advocacy groups demanded increasingly comprehensive governmental protections from racial discrimination, gender inequality, violent crime, environmental degradation, hazardous products and technologies, sudden economic loss, 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, decentralized 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, empowering both regulated entities and non-governmental organizations (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 programs that have dominated the regulatory-welfare state in Western Europe.
IV. Pressures for “Americanization” in European legal systems
Assuming my “political economy” explanation for the distinctive features of American law is correct, the more European governments and economies now experience the same political and economic pressures as the USA, and the more they come to resemble the American political economy, the more one should expect their laws and legal practices to mimic America’s (Kagan 1997). In the realm of political economy, for example, the EU’s drive to deepen the common market, plus the intensification of international economic competition, have led to greater reliance on markets, less reliance on informal corporatist governance, which invites more legalistic forms of regulation and more litigation. Meanwhile, continuing political demands for individual rights, non-discriminatory treatment, and environmental protection – combined with a fragmented governmental structure at the EU level and growing distrust of governmental expertise – invite more reliance on courts to elaborate and implement new legal norms and to enhance governmental accountability.
A. Global competition, neoliberalism, and adversarial legalism in the economic realm
A basic theorem in socio-legal studies is Donald Black’s (1976) proposition that resort to law increases in accordance with the social distance between parties, whereas such resort is suppressed when parties are enmeshed in continuing relationships. Thus adversarial legalism increased in the USA when the intensification of global competition led to rapid shifts in production chains, trade relationships, and financing arrangements, engaging larger numbers of companies, domestic and foreign. Along with greater efficiency, the risks of opportunistic behavior increased. American legislatures and courts formulated new regulations and private rights of action to punish financial deception, insider trading, bankruptcy abuse, risky forms of trading, and unjust employee dismissals. This led to more lawsuits between corporations (Nelson 1990; Galanter 1988) and against corporate managers, more lawsuits between debtors and creditors, and more strategic use of litigation to intimidate and extort (Alexander 1991). Corporations invested in more detailed, costly legal documents, designed to fend off those legal risks.
So too in Europe, where a system of corporate finance dominated by large banks and interlocking corporate groups has been eroded by a trend toward more fluid, public, and international modes of corporate finance and corporate restructuring (Coffee 1991). European corporate managers now more often are strangers to their creditors and stockholders and vice versa. Kelemen and Sibbitt (2004, p. 109) argue that intensified economic competition in Europe has (i) increased the number and diversity of products/service markets and of competing firms; and hence (ii) undermined informal systems of regulation based on insider networks and trust; and hence (iii) induced EU and member-state regulatory systems to become more legalistic and adversarial. Other authors have noted that the 1990s saw the advent of European legal techniques that mimic methods pioneered in the USA – legalistic financial regulation (Pitt & Hardison 1992), aggressive lawyering in commercial litigation and arbitration (Garth & Dezelay 1995; Kelemen & Sibbitt 2004, pp. 114–115), and detailed, defensively written contracts (Shapiro 1993, p. 41; Wiegand 1996, p. 139). After years of reluctance to follow the USA in authorizing shareholder and consumer class actions against corporations, Great Britain and Sweden have done so in recent years, and political leaders in Germany and France have proposed doing the same (Tait & Sherwood 2005).
Intensified economic pressures for greater efficiency also have fueled an EU-wide trend toward privatization of telecommunications, rail and air transportation, health insurance, and retirement funds – functions that have long been private, competitive markets in the USA.11Stephen Vogel’s (1996) comparative analysis of privatization and deregulation in financial services, telecommunications, public utilities, and transportation, is entitled Freer Markets, More Rules, for he finds that along with marketization, control by law replaces informal controls by governmental ministries and banks.
B. Fragmented government and adversarial legalism in public law
Adversarial legalism increased in the USA, it was suggested earlier, because of broader political developments, particularly the tension between (i) intensified political demands for governmental action; and (ii) a structurally fragmented governmental system reflecting distrust of governmental power. The government of the European Union, too, has faced political demands to promulgate Community-wide norms, not only to foster economic integration, but also to enhance environmental protection and individual rights. But the political authority in the European Union is fragmented, both between the Commission, Council, and Parliament and within those bodies. The EU government does not have its own local-level enforcement bureaucracy or courts. Logically, then, one would expect proponents of Europe-wide norms, like American reformers in the 1960s and 1970s, to seek laws that empower private businesses and advocacy organizations to bring lawsuits against member-state governments which are not administering EU directives enthusiastically. Thus in a series of cases establishing and extending the “direct effect” doctrine, the European Court of Justice (ECJ) encouraged private claims in member-state courts for violations of EU Directives and some EU regulations (Stone Sweet 2000, pp. 161–165). Similarly, the fragmentation of EU authority, according to Kelemen and Sibbitt (2004, p. 110) explains why the EU Commission (like the American Congress in the 1960s and 1970s) has promulgated “detailed laws with strict goals, deadlines and procedural requirements, and has encouraged an adversarial, judicialized approach to enforcement.”
Furthermore, because the fragmented and complex decision-making structure of the European Union often has resulted in deadlock or delay in responding to political demands for policy initiatives, it should not be surprising that, like the US Supreme Court in the 1960s, the ECJ, beginning in the 1960s and 1970s, became the most dynamic policy-making institution in the European Community (Weiler 1991; Shapiro 1993). The ECJ read the Treaty of Rome expansively to pave the way for community-wide environmental regulation (Vandermeersch 1987) and forge the ground rules for reconciling national product regulations with free trade (Vogel 1995). The Court interpreted EU directives on social issues broadly, expanding member-state obligations (Stone Sweet & Brunell 2002, pp. 286–287), and encouraged private litigation to enforce environmental norms (Cichowski 1998, pp. 400–401).
In addition, European member-state governments, like governments in the USA, have been exposed to intensified political demands for more and better legal protections and remedies. One result has been a tendency, in several European countries, to adopt environmental and consumer protection regulations that are more stringent than those in USA, at least with respect to issues such as genetically modified crops and foods, sale of beef and milk from hormone-fed cattle, carbon emissions, and product recycling (Vogel 2004).12 And just as in the USA, there are signs of increased policy-oriented litigation in European member states. Jeffery Sellers (1995) found that in the 1980s, governmental land-use decisions were challenged in court (usually on environmental grounds) almost as often and as just as successfully in Montpellier, France and in Freiburg, Germany as in New Haven, Connecticut. In the last two decades, British courts have substantially increased the incidence of review of validity of governmental administrative action (Sunkin 1994; Sterett 1999). Distrust of government and professional expertise may lie behind judicial liability-expanding rulings such as a much-discussed French case establishing medical liability for birth defects.
Most fundamentally, 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 (ECHR) – has fragmented authority in EU member states, undermining unquestioned parliamentary (and hence national bureaucratic) sovereignty (Stone Sweet 2000).13 Hence as in the USA, those who fail to get their way in legislative debates or by political pressure on administrative policy-makers can more often frame their objections in terms of constitutional rights, EU law, or treaty-based human rights – and pursue them through litigation.14
V. Impediments to legal convergence: Why European legal systems will not be “Americanized”
If the law of the European Union and member states is changing in ways that seem, at least superficially, to resemble distinctive features of American law, the question remains how far the European way of law is moving along that trajectory, and what impediments are likely to limit that movement. In addressing that issue, this section is necessarily speculative.15 General theories of policy change and stasis provide the basis for some hypotheses, however.
Pressures for significant changes in public policies and modes of implementation typically encounter counter-pressures engendered by “path dependency”– the resistance to change that generally is stimulated by long-established institutional arrangements (Pierson 1994). There are always powerful interests, some in the population at large, some among relevant elites, who would lose influence or income from proposed legal changes. Lawyers, judges, and legal scholars are usually quick to point out how proposed legal changes would clash with long-established laws, legal principles, and institutional practices, or might have unpredictable and probably unwelcome consequences. Even if submitting to a new legal transplant is unavoidable, those committed to existing ways of law, for either material or idealistic reasons, often try to prune the transplant to mesh with existing arrangements. In sum, the factors that have generated American legal distinctiveness, even if now operating in Europe, encounter there a very different set of cultural and institutional traditions. Those traditions, and their influential adherents, seem to have impeded and redirected movement toward Americanization of European law, and I think that they will continue to do so.
One of those impediments, I believe, is the tenacity of European national legal cultures (Kagan 1997). Adversarial legalism in the USA is animated by skepticism concerning governmental and legal authority – a skepticism that pervades American legal education and the “legal culture” of lawyers and judges, and that valorizes responsiveness to conflicting parties and legal advocates rather than hierarchical legal authority and consistency. Those attitudes are antithetical, however, 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, p. 67). Virtually every adversarially tinged proposed legal reform in a European nation must deal with the warning, “Be careful or we will end up like the United States!” 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 that closely resemble American adversarial legalism.
The second major impediment to the spread of American style adversarial legalism, I believe, is the tenacity of the political structures of EU member states. Although the European Union has compelled member states to make certain changes in administrative and legal processes, the member states generally retain considerable discretion in crafting their own ways of implementing EU directives, as well as their own ways of implementing domestic policy. In doing so, political party leaders and top bureaucrats in Western European democracies face strong incentives to use accustomed, predictable methods of policy-making, policy implementation, and dispute resolution rather than the difficult-to-control, less predictable methods of adversarial legalism. Thus even when rights to challenge governmental administrators are strengthened in European countries, those rights generally have been implemented primarily through administrative courts or specialized, inexpensive tribunals, part of the executive branch (Blankenburg 1994; Jost 1998; Kritzer 1996), not by means of costly, adversarially-structured litigation in courts of general jurisdiction, as is the case in the USA.16
If I am correct about the the significance of European legal cultures and traditional governing structures as impediments to convergence, many salient features of the American way of law almost surely will remain quite unattractive to national political and legal elites in Europe. I will try to support that speculation by discussing six such features.
1. The political nature and remedial powers of American judiciaries
In many European countries, the rise of constitutional courts, along with the ECJ and the ECHR, has made it easier for interests who are frustrated by the mechanisms of democratic politics to challenge in court the constitutionality of the policies and laws they dislike (Stone Sweet 2002). Yet the range and intensity of the political use of litigation is institutionalized in the USA in ways that make it qualitatively different than in Western European countries, as well as quantitatively much more frequent and varied. In contrast to the European Union, for example, the US central government has its own nationwide network of lower federal courts, ready to hear cases arguing that state and local (as well as federal) governmental bodies have failed to comply with federal law or with court rulings concerning individual Constitutional rights. In addition, American lower courts– those most accessible to advocacy organizations – are uniquely powerful. Using their equity powers, US District Court judges often have ordered state governments, highway construction agencies, local school districts, jails and prison systems, police departments, and forestry agencies, among others, to undertake specific (and often costly) reforms or mitigation projects, under continuing judicial supervision (Sandler & Schoenbrod 2003; Melnick 2004).17
Further, the political character of American state and federal judiciaries invites policy-oriented litigation. Judges in the USA are recruited on the basis of their prior partisan political experience and commitments, rather than through European-style meritocratic examination systems and apprenticeships.18 In difficult cases, Democratic judges in the USA often decide differently from Republican judges (Gottschall 1986, pp. 49–54; Sisk et al. 1998). Hence compared with Western Europe, the USA has a far larger network of politically motivated “cause lawyers”, organized to influence public policy, public administration, and corporate behavior through litigation. Political interest groups openly lobby the president to appoint politically sympathetic federal judges, aggressively lobby Senators to block the appointment of nominees whom they dislike, and spend very large sums on partisan elections for State Supreme Court positions. Although political considerations have been increasing somewhat in selection of judges for the ECJ and some powerful member-state constitutional courts (Guarneri & Pederzoli 2002; Bohlander 2005), the 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.
2. The pervasiveness of adversarial legalism in the regulatory process
The European Union and member states have been using formal rules to make the regulatory process more transparent, but large US–European differences persist. 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). Regulatory policy-making at the member-state level, rooted in a different conception of bureaucratic autonomy and professionalism, is not likely to mimic the frequent court scrutiny of regulatory decision-making that prevails in the USA.19 Large differences also persist in regulatory implementation style. According to 10 case studies in the late 1990s, multinational corporate officials experience American regulation as more prescriptive, complex, confusing, punitive towards violations, heavily lawyered, and costly to comply with than parallel regulatory regimes in Western European nations (Kagan 2000).
Moreover, European nations have moved only hesitantly toward the American emphasis on private litigation by “private attorney generals” to enforce regulatory law.20 European moves in that direction are muted not only by the more unitary nature of European states, but also by path dependency, which mobilizes political constituencies who fear the changes implied by private enforcement. For example, John Cioffi (2002) notes that Germany appropriated some elements of the American approach to securities regulation, but declined to foster US-style shareholder class actions to enforce regulatory norms, partly because both the German labor movement and political and economic elites feared it would undermine codetermination (labor participation) on German corporate boards of directors. Similarly, in 2000, the European Union issued the Equal Treatment in Employment and Occupation Directive, the so-called “Horizontal Directive,” which requires member states to enact legally enforceable rights against discrimination based on gender, age, religion, sexual orientation and disability, as well as a separate directive against racial discrimination, which requires member states to provide strong legal sanctions for violations.21 Yet according to Tom Burke (2004, p. 159, 170), author of a comparative analysis of disability rights,
It seems unlikely … that the Horizontal Directive … will lead Europe to American-style disability rights litigation. That is because most European nations thus far lack the legal machinery required to vigorously implement litigious policies. Contingency fees, large verdicts, a corps of aggressive plaintiff lawyers – are in short supply in Europe.
3. The hyperactive American tort law system
During the last two decades, several American states have imposed some limits on tort case damage awards, and changes in tort law in Ireland, the UK, and France, for example, have led to sharp increases in claims and liability insurance costs (Fleming 2005).22 Nevertheless, Blankenburg (2001, pp. 21–22) notes, the cross-Atlantic differences remain large:
Even if there is much discussion about a few extraordinary liability claims also being launched in Europe, most empirical studies show that the volume of cases is much lower than in the USA. Personal injury damages in Europe are largely covered by insurance systems, and most jurisdictions rely on standard tables for tort damages…. In general, awards are lower than in America …
Recent analyses indicate that in the USA, verdicts in personal injury cases provide much larger awards for pain and suffering – and far less predictable awards – than similar tort cases in Western Europe (Sebok 2006, p. 392; Sugarman 2006, p. 418). Higher money damages, together with the widespread use of contingency fees and aggregation of similar cases in large class actions (both of which still are disallowed or uncommon in Western Europe), make the practice of tort law in the USA much more lucrative for plaintiffs’ attorneys, much more fearsome for business firms, medical providers, and governmental bodies, while remaining an erratic, very inefficient and often inequitable way of compensating injured people (Kagan 2001, pp. 135–144). It is an unlikely model for European governments, business interests, or legal scholars to seek to emulate.
4. The more limited rights to social provision in the USA
Despite the pressures of global economic competition, there are few signs that Western European governments have moved or will move substantially toward the less generous, more privatized, more voluntary US model of social provision and employee protection.23 Although there has been much talk in Europe of a new “age of austerity” in the welfare state, most academic analysts have characterized recent changes in entitlement laws as efficiency-enhancing reforms, rather than as massive retrenchment or movement toward neoliberalism and the privatized American version of the welfare state (Pierson 2001; Levy 2006).24 Most explanations for the preservation of worker rights and welfare entitlements emphasize the political strength of the broad constituencies that benefit from and support existing protections (Myles & Pierson 2001).
Indeed, the most significant welfare state change in the last decade has been the shrinkage of the protections in the USA. Federal welfare reform legislation passed in 1996 dramatically limited benefits for poor families. American business firms, faced with escalating health-care costs, have sharply contracted employer-paid health insurance for workers and reduced the certainty of voluntary, employer-provided pension guarantees (Hacker 2002; Freudenheim 2005). If anything, therefore, the gulf between Western Europe and the USA in legally guaranteed health, welfare, and employee benefits has widened (Jaumotte 2003; OECD 2003a; Adema 2005, p. 10).
5. The less demanding American tax laws
Since 2000, according to the OECD (2003b), 15 OECD countries reduced their top rates for personal income taxes, and 12 lowered them for corporations. Does this mean that the traditional US–European differences in tax law have narrowed significantly? Not very much, partly because of the strong political pressures in European nations to maintain social entitlements and partly because since 2001, a conservative American president and Congress have aggressively cut federal income tax rates further. According to 2002 figures, tax revenues in the USA, including compulsory social security contributions, equaled approximately 29% of gross domestic product (GDP). By contrast, in Sweden, Denmark, Finland, Denmark, the Netherlands, Belgium, France, and Italy, tax revenues were 40% of GDP or more; only Ireland (the most economically dynamic Western European country) was at the US level.
6. Punitiveness and adversarial legalism in American criminal justice
Reflecting the social disruptions stemming from immigration, competitive economic change, and de-industrialization, crime rates have increased in many European countries in the last 10 years. As fear of crime has grown (Downes 2001, p. 60), crime has become a much more salient political issue in many European countries – making Europe more like the USA in this respect too. Imprisonment rates in the UK and the Netherlands have increased significantly (Greenberg 2001, p. 74).
Nevertheless, the USA remains in a league of its own in terms of the severity of penal policy, in the harshness of cultural attitudes toward punishment (Whitman 2003), and in the extent to which penal policy-making is open to populist political pressures to be “tough on crime” (Kagan 2001, pp. 69–70, 80–81). The death penalty remains legal in most American states, and executions remain common in several southern states (Zimring 2003). In view of Europeans’ ever-increasing criticism of the USA for retaining capital punishment, it is less likely than ever that Europe legal systems will become “Americanized” in that regard.
Similarly, movement in the UK and the Netherlands toward tougher sentencing are only baby steps toward the severity of American criminal sentences, particularly (but not only) for non-violent crimes and drug offenses (Downes 2001 pp. 65–66). Thus although American crime rates in the USA now are generally lower than in many European countries (according to a 1999 UN household victimization study), in 2000 prisons in the USA held 468 adults per 100,000 in the population.25 At the low end for Western Europe, the imprisonment rate in Norway, the Netherlands, Denmark, Switzerland, Finland, and Italy remained less than 50 per 100,000; at the high end, the rate was approximately 108 in Spain, and approximately 93 in England and Portugal (OECD 2005b). In addition, political support for harsh criminal penalties in the USA remains greater: although burglary rates, according to the 1999 victimization studies, were higher in several Western European countries (England, Denmark, and Belgium) than in the USA (with the Netherlands about the same), American survey respondents were most likely to recommend imprisonment (rather than community service) for a hypothetical 21-year-old recidivist burglar, and they recommended significantly longer prison terms than respondents from other Western European countries.
Crime increases in Europe have generated new pressures on traditional methods of criminal law enforcement, police supervision, and adjudication, and there have been arguments for introducing more adversariness into the continental criminal process. But adversariness can be increased without mimicking American adversarial legalism. It is hard to imagine that European nations will be attracted to many key elements of the American model of criminal justice. For example, in contrast to the national prosecutorial bureaucracies in Continental Europe, prosecutors in the USA are selected through local political processes, and individual assistant prosecutors receive less professional training and close supervision (Downes 1988, p. 15; Frase 1990; Johnson 1998). The costs and cumbersomeness of the highly adversarial American jury trial has made it unworkable as an everyday mode of adjudication (Alschuler 1986). Based on a study of the introduction of plea bargaining in Germany, Italy, and France (as well as Argentina), Maximo Langer (2004) found that
The influence of American plea bargaining in all four of these jurisdictions is undeniable. Despite this influence, however, the importation of plea bargaining … is not likely to reproduce an American model of criminal procedure. Each of these jurisdictions has adopted a form of plea bargaining that contains differences – even substantial differences – from the American model.
One reason, Langer suggests, is that the “structural differences between the American adversarial conception of criminal procedure and the continental European and Latin American inquisitorial conception of criminal procedure are so deep.” Another is that
In each of these civil law jurisdictions, some legal actors have distrusted or resisted the adoption of plea bargaining … either because reforms have threatened their traditional powers … or because of their differing legal culture.
Traditional European legal folkways are far from unchangeable. In the last few decades, litigation and judicial decisions have become more prominent features of governance, regulation, policy development, and dispute resolution in the legal systems of Western European countries. Global economic competition, migration, fiscal pressures, and the challenges of coordinating law and policy throughout the European Union have encouraged those trends and probably will continue 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, privatized economy. European NGOs, plugged into the Internet and American news, will continue to lobby for some of the individual legal rights that American adversarial legalism is so prolific at inventing – such as rights against spousal abuse, sexual harassment, and more – although European legal systems are more likely to mirror American norms than adversarial American enforcement methods.
Yet due to national traditions of “bureaucratic legalism,” increases in law, litigation, and judicialization in Europe do not imply comparable increases in American-style adversarial legalism, and even some movement toward American-style adversarial legalism does not mean convergence with the American way of law. Imagine adversarial legalism varying, on a national basis, between “high” and “low,” as shown in Figure 1.
At Time 1 (e.g. 1970–1980), the figure suggests, the USA had high levels of adversarial legalism, and Nation X (e.g. England, Germany, Italy), ranked low in that respect. Even if adversarial legalism were to increase in Nation X between t1 and t2, as indicated in Figure 1, and even if the incidence of adversarial legalism decreased in the USA from t1 to t2, there would still be a very substantial gap between the two countries. In reality, we have no aggregate measures of where countries as a whole stand on this dimension. But my sense is that the gaps between t1 and t2 displayed on Figure 1 roughly capture both the trend over the last decade and the relative position of the USA and Western Europe.26
Conceivably, my time horizon has been too limited. When De Tocqueville visited the USA in the late 1820s, he noted the prominence of courts and lawyers in the governmental process, but neither he nor his American contemporaries could have envisaged the range and scope of adversarial legalism that pervades American governance and social life in 2007. Similarly, one might wonder whether the developments in European law and practice discussed above, even if they have moved European ways of law only to point t2 in Figure 1, are still in their infancy. The new legal structures are in place. They generate incentives for expansion in the direction of adversarial legalism. And external factors – continuing economic, social, and political pressures for legal harmonization and individual rights – could well continue to fuel those incentives, while battering down European levels of taxation, social provision, and labor entitlements. So it might be argued that in 50 years, or 75 – only a blink of an eye in the history of European law – real convergence on some new Euro-American way of law might occur.
I would be foolish to assert that that definitely will not happen, and indeed it probably will happen for some areas of law and governance. But American states – in Tocqueville’s time and in 1960 (at the brink of the real explosion of American adversarial legalism) – had very different governmental structures and legal cultures than European countries have today. Adversarial legalism and resistance to “big government” fit comfortably with those structures and cultures. They do not fit comfortably with the governmental structures and legal cultures of contemporary European states. So my bet is that most of the entrenched differences between American and European ways of law discussed in this paper will persist for many decades to come.
Throughout this paper, I identify “Americanization” and “American” with the USA alone, ignoring all other countries in North, Central, and South America, because that is the sense in which the term has been used in popular and scholarly discussion of the Americanization of European law.
Some reviewers of this article suggested that greater perspective on US-European similarities and differences could be achieved by extending the analysis of the legal effects of globalization to Asian legal systems or the legal systems of other nations which have faced global pressures to choose between American and European legal models. In principle, I heartily agree. In practice, however, such an analysis exceeds my capacities, while suggesting an important set of additions to the comparative socio-legal research agenda mentioned here.
In using the term “American distinctiveness,” I refer to ways in which the USA is legally different from Western European countries. I intend no normative or evaluative judgment thereby and do not wish to imply that European legal models are some how the “normal” base point from which other legal systems should be measured.
See note 23.
It should also be mentioned, however, that in the last 25 years, the American economy, less burdened by taxes and restrictive labor laws, has been more successful than most European welfare states in fostering entrepreneurial innovation, generating jobs, and holding down youth and long-term unemployment.
In recent years, many American states have enacted laws stipulating that “collateral source payments” (such as payments for medical expenses and lost earnings from public programs or private insurance policies) can be (or in some states must be) subtracted from plaintiff’s jury award in tort cases, with varying exceptions. (ATRA 2004).
In 1988, for example, Congress increased criminal fines for insider trading to $1,000,000 for individuals and $2,500,000 for entities, and doubled the maximum prison term for violations of any securities law provision from 5 to 10 years (Pitt & Shapiro 1990, p. 238). Under both federal and California law, courts can impose a criminal fine of up to $1,000,000 on a corporation for violations of water pollution laws that “knowingly endanger another person”; individuals can be fined up to $250,000 and sentenced to prison for up to 15 years. The federal Truth-in-Lending Act granted prevailing plaintiffs a $100 minimum award, regardless of actual losses, plus their attorneys’ fees; enterprising attorneys could then bundle tens of thousands of bank customers together in a class action, “raising the specter of enormous damages suits for minor violations of the statute.” (Rubin 1991, p. 237)
Under the federal antitrust law, defendants can be (and not infrequently have been) prosecuted criminally by the government and then sued for “treble damages” by private plaintiffs. With respect to multiple penalties for environmental violations, see Kagan 2001, pp. 193–194).
For citations to relevant studies, see Bogart (2002, p. 114) and Kagan (2001, p. 8) (Table 1). See also Steinmo (1993, p. 38, 41) for an analysis of the relations between political controversy, governmental structure, and the much greater complexity of US tax law, as compared to the UK and Sweden.
That role was never filled in the USA by the Democratic Party, which for many years was split between an industrializing North and Midwest and an agricultural, racist South.
The OECD recently completed a study of governmental outsourcing, that is, the purchase of goods and services of a kind that traditionally, or often, has been provided directly by governmental entities. Whereas the USA ranked substantially higher in proportion of services outsourced than most Western European countries, their numbers were rising, and the UK substantially exceeded the USA in that regard (OECD 2005a, pp. 14–15).
Overall, according to a systematic comparative study of 100 risk regulations in the USA and Europe, 1970–2004, there is no significant difference in relative “precaution” or stringency, although there has been modest shift toward greater relative precaution in Europe since 1990 (Hamitt et al. 2005).
To assess the nature and strength of the hypothesized “impediments,” it would have been helpful to have been able to draw on some detailed accounts of the actors and debates within European member states concerning proposals to adopt particular US-style laws and policies. I confess to not having undertaken a search for such accounts.
Illustrating the difference, Welles and Engel (2000) show that a multinational corporation spent $15 million on legal services to obtain governmental approval for a municipal solid waste landfill in California, including three extended lawsuits. In a similar controversy in England, by contrast, legal appeals were directed to an administrative forum, and the company’s legal costs were $137,000. In the Netherlands, despite having undergone two administrative appeals, the company did not have to retain lawyers at all and spent “less than $50,000” on legal services.
In the early 1990s, the municipal government of Washington, DC was operating under at least seven separate judicially supervised decrees, requiring city officials to meet higher standards in food subsidy programs, jails, public mental health services, public housing, institutions for the mentally ill, juvenile detention facilities, and public schools (Plotz 1994). Prisons in 41 states have operated under court orders to improve conditions (Feeley & Rubin 1998, p. 13; Melnick 2004). In 2000, more than 30 state welfare agencies were operating under court orders demanding improvements (Sandler & Schoenbrod 2003, p. 122). In Kansas City, Missouri, a US District Court judge, to increase racial balance and equal educational opportunity, ordered the construction of 17 new schools and the renovation of 55 others, which was estimated to cost over $15 billion (Wise & O’Leary 2003).
I recognize that there are exceptions in Europe. Even the U.S. has not seen anything comparable to the Italian prime minister Berlusconi’s systematic efforts to neutralize and reshape the Italian judiciary (Stille 2006).
For citations and case studies illustrating court–agency conflict (and dialog) in the USA, see Kagan (2004, p. 18).
Federal civil rights legislation, for example, gives rise each year to thousands of civil lawsuits against local police departments, local jails, and state prisons for violating individual constitutional rights. Citing the desire to give lawyers more incentives to bring lawsuits, Congress in 1991 enhanced monetary penalties attached to violations of antidiscrimination regulations by employers (Farhang 2005). The Americans with Disabilities Act (1990), by providing disabled people rights to gain access to governmental services free of architectural barriers, stimulated scores of lawsuits and judicial orders requiring city after city to install costly curb ramps on street corners (Sandler & Schoenbrod 2003, pp. 36–37).
The race directive states that “The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive” (Council Directive 2000/43/EC).
Overall, the conservative campaign against the tort law system has only “nibbled at the edges” of the legal rules and institutional arrangements that make that system uniquely costly and threatening (Kagan 2006).
Jacob Hacker (2002) showed that in 1995, public social welfare expenditures in the USA equaled only 17.1% of GDP (as compared to 35–37% in Scandinavian countries, and 25–30% in Germany, the Netherlands, Italy, and the UK). However, private expenditures for the same purposes (often subsidized through tax deductions) were much higher in the USA, amounting to 8.3% of GDP, which narrows the US–Western European difference in total social provision somewhat.
These conclusions are reinforced by a study of labor market regimes in several Western European countries (Wood 2001) and comparative studies of health-care expenditures (Giaimo 2001) and pension reform (Myles & Pierson 2001). Among OECD countries, average gross public social expenditure declined from a peak of 23% of GDP in 1993 to approximately 21.5% of GDP in 2001, with all the decline accounted for by non-health expenditures. (OECD 2005b).
There are great inter-regional variations in imprisonment rates in the USA, with much higher rates in southern states and much lower (but still higher than European) rates in northern states such as Maine.