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American and European Ways of Law: Six Entrenched Differences

  • Author(s): Kagan, Robert A.
  • et al.
Abstract

In the wake of intensified global economic competition, economic liberalization, waves of immigration, and the rise of European Union governance, many observers suggest that there has been a sharp diminution of the long-standing differences between hierarchically-organized European legal processes and the more fragmented, malleable “adversarial legalism” of the United States. It is not easy to find meaningful quantitative indicators of convergence (or of continued divergence) in systems as complex and multi-faceted as contemporary legal systems. I argue, however, that six salient features of the American way of law have not emerged and are unlikely to emerge in European legal systems.

Two of these differences are structural or procedural: (1) the political nature and powerful remedial powers of American judiciaries; (2) the high levels of adversarial legalism in the American regulatory process. The next four differences are substantive, relating to differences in the content of bodies of law that are central to the experience of citizens: (3) laws and institutional practices that make American tort law uniquely threatening; (4) the more limited rights to social provision and employee protections that prevail in American law; (5) the less demanding obligations of American tax law; (6) America’s more punitive criminal sanctions, more permissive gun laws, and greater reliance on adversarial legalism in criminal adjudication and police accountability. These six differences are not likely to narrow significantly, I will argue, since they are rooted in the distinctive features of American and European political structures, political belief systems, and legal cultures.

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