Lost in Translation? Nonstate Actors and the Transnational Movement of Procedural Law

Abstract

In recent years U+S+ legal norms and practices reconfigured important elements of how law is thought of and practiced in both common and civil law countries around the world+ With specific focus on the spread of American procedural practices~class action and pretrial discovery!, this article applies a transactional view of law that emphasizes the private practice of law and nonstate actors+ Such an approach highlights important aspects of world politics overlooked by traditional analyses of international legalization, conventionally understood as the direct spread of law by and among states+ We find that the movement of law is a dynamic process involving diffusion, translation, and the repeated transnational exchanges of legal actors+ Through our examination of this process, we offer insights into how aspects of American law moved into unlikely jurisdictions to reshape legal theory, pedagogy, procedure, and the organizing structure of the legal profession+ In recent years the spread of American legal practices has reconfigured how law is thought of and practiced in common and civil law countries around the world+ Focusing specifically on the spread of American procedural practices, this article argues that the movement and translation of law is a dynamic process involving diffusion and translation+ U+S+ legal norms and practices have shown considerable influence over foreign legal systems across a broad range of issues, including legal The views expressed in this article are the authors' own and do not necessarily reflect those of the U+S+ Department of State or the U+S+ government+ We are indebted to insightful comments and cogent criticisms provided

Cooperative transnationalism in contemporary Europe: Europeanization and political opportunities for LGBT mobilization in the European Union

“…They require actors – and the channels that connect them – to mobilize and to validate the norms that need to be learned. According to Brake and Katzenstein (forthcoming), ‘We learn when we change our beliefs or alter the confidence we have in our beliefs because of new observations, interpretations, or repertoires of practice’ (p. 36). The mobilization of actors in the EU framework – both horizontally and vertically – and their interaction with actors in the target state triggers the learning mechanism of socialization, which plays a key role in this process by introducing domestic actors to the LGBT issue.…”

Networked liabilities: Transnational authority in a world of transnational business

“…NGOs, then, have used legal standing in developed countries to go after the corporate group, regardless of the location of the particular regulatory infringement. As legal and regulatory institutions diffuse globally (Brake and Katzenstein, 2013), future work should consider how these diffusion patterns may affect a state’s long-term ability to exploit networked liabilities across these different regulatory domains. Ultimately, the spread of regulatory capitalism across countries and sectors may reduce jurisdictional substitutability.…”

Institutionalizing Big Data methods in social and political research

“…The indicated study proposed hypotheses that legal system traditions indeed explain differences in government budgetary legislation according to entrenched historical, social, cultural, and political divisions in common law with British origins, Napoleonic civil law first codified in France, civil law of the German type, and Nordic law resembling German law in many respects (Glenn, 2010; Zweigert and Kötz, 1998). The study that this article re-examines approached differences between the legal systems taking the less common inroad of examining differences in legal language (Brake and Katzenstein, 2013; Kischel, 2009).…”