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Unformatted text preview: 2/2/2006 1 American and European Ways of Law: Six Entrenched Differences ◊ Robert A. Kagan ∗ Are European and American legal systems moving toward convergence? There surely are many pressures in that direction. A growing array of international treaties demand cross-national harmonization of domestic substantive laws on numerous subjects -- pollution control, protection of human rights, public health measures, bank safety rules, the elimination of laws that operate as non-tariff trade barriers, and many more. This is to be expected, according to political scientist Beth Simmons (2004), because in an increasingly interdependent world, when powerful polities such as the U.S. and the European Union (or important constituencies within them) suffer significant costs or disadvantages from divergent national legal or regulatory standards, they are likely to use international or supra-national institutions, as well as their own economic and political leverage, to push for legal convergence. Some legal convergence also stems from what might be called “spontaneous simultaneous adaptation.” Global competition and communications confront all industrially advanced democracies with similar social, economic, and environmental problems and similar political demands. Regulatory officials, scientists, legal scholars, and policy advocates fly across borders, in person and electronically, sharing knowledge about problems, risks and claimed legal remedies. 1 But for every political action (and theory), there is a counter-reaction (and counter-theory). Pressures toward legal convergence meet resistance from political factions, interest groups, and legal elites who think they would be disadvantaged by adopting foreign legal ways, or simply oppose them on philosophic grounds. Or they ◊ This paper was prepared for the First European Socio-Legal Conference, Onati, Spain, July 6-8. 2005 ∗ Professor of Political Science and Law, University of California, Berkeley. [email protected] . Margaret Boittin provided excellent research assistance for this paper. Daniel Kelemen, Erhard Blankenburg, Tom Burke, John Cioffi, Jacqueline Gehring, Helen Hartnell, Keith Hawkins, Frank Zimring, Alec Stone Sweet, and James Whitman provided valuable references and comments.. Errors, omissions, and overgeneralizations in the author’s assertions about law and legal institutions in Europe are his responsibility alone. 1 Thus two recent cross-national studies indicated that multinational corporations in OECD countries face basically similar environmental laws and employ basically similar environmental control measures (Kagan & Axelrad, 2000; Gunningham, Thornton & Kagan, 2003). . 2/2/2006 2 accept legal transplants, but transform them to conform with domestic legal traditions or with domestic professional, political and economic interests. Convergence-skeptics, therefore, argue that continued legal divergence is likely to continue in many areas of law and legal process....
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