Globalization and legal change: The “Americanization” of European law?

Abstract

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.

Private Enforcement of Statutory and Administrative Law in the United States (and Other Common Law Countries)

“…There is disagreement about what has caused this development, and in our discussion of the relationship between political institutions and private enforcement, we highlight an explanation grounded in political institutions that has been proffered by a number of scholars (Kagan 2007;Kelemen 2006;Kelemen and Sibbitt 2004). Putting aside other rival or supplementary hypotheses, 89 we synthesize the political institutions explanation as follows: Beginning in the mid-1980s, economic liberalization in the EU and the push for an integrated market had the gradual effect of displacing regulatory policymaking from member states to the governing institutions of the EU.…”

“…Interestingly, similar institutional arguments have been marshaled to explain growing private enforcement (on the American model, it is often argued) in the European Union over the past several decades. Over about the last decade there has been mounting scholarship demonstrating growing reliance in the EU on regulation though the creation of rights that are privately enforceable in both judicial and administrative fora (see, e.g., Alter 1998; Alter and Vargas 2000;Dickens 2007;Hodges 2009;Kagan 2007;Kelemen 2006;Kelemen and Sibbitt 2004;Sweet 2000). This body of work yields the following set of insights about the growth of private enforcement in the EU:  It has been encouraged by decisions of the European Commission, the European Parliament, and the European Court of Justice.…”

The European Court of Human Rights at the grassroots level: who knows what about religion at the ECtHR and to what effects?

“…Frances Zemans identifies in the US-Europe comparison an Anglo-American legal tradition which considers that the public good will emerge out of the assertion of individual claims, a view which, according to Zemans, 'fits nicely with the individualistic spirit that pervades American culture ' (1982, 995). That said, a judicialisation of politics is rapidly spreading globally (Gibson, Caldeira, and Baird 1998;Kelemen 2011), and conspicuously so in Europe also, though with important distinctions from the American model (Kagan 2007).…”

Risk, Regulation and Crisis: Comparing National Responses in Food Safety Regulation

“…In the US case, a dominantly individualist argument should be expected that emphasises consumer transparency, a belief in self-regulation and product recalls (Jann 1983;Kagan 2001Kagan , 2007. In Denmark a mostly egalitarian response should be expected (in social-democrat Scandinavian tradition; placing an emphasis on information exchange, mutuality-based professionalism and a scepticism towards markets, possibly adding some hierarchical ingredients in terms of demands for tighter controls and more extensive market intervention) (Jann 1983).…”