Comparative Law Papers on LegalTheoryBlog (Solum)

Professor Solum's LegalTheoryBlog this week had these references to papers of interest to comparative lawyers (focus on the US and Europe):

First up, there's a link to a Columbia Legal Theory Workshop paper by Professor Robert Kagan (Berkeley) entitled "American and European Ways of Law: Six Entrenched Differences". (link here). Professor Kagan's paper opens with the question "Are European and American legal systems converging?", and deals with this theme primarily by asking "whether aspects of law, legal processes, and legal institutional arrangements that seem distinctively American, significantly different from their European counterparts, are now being adopted in Europe[?]". These 'distinctively American' aspects of law, processes and institutions are summarized under the heading of "adversarial legalism". As compared to European "legal styles", the American "style" of adversarial legalism would entail: "(1) more complex bodies of legal rules; (2) more formal, adversarial procedures for resolving political and scientific disputes; (3) more costly forms of legal contestation; (4) stronger, more punitive legal sanctions; (5) more frequent judicial review of and intervention into administrative decisions and processes; (6) more political controversy about legal rules and institutions; (7) more politically fragmented, less closely-coordinated decision-making systems; and (8) more legal uncertainty and instability". The paper argues that although dynamics very similar to those that have created adversarial legalism in the US operate in Europe. However, a series of "entrenched differences" are thought to be "extremely unlikely to disappear". These differences are: "(1) The political nature and remedial powers of American judiciaries; (2) High levels of adversarial legalism in the American regulatory process; (3) The laws and institutional practices that make American tort law uniquely threatening; (4) The 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".

Other comparative law papers cited on LegalTheoryBlog:

Noga Morag-Levine (Michigan State University - College of Law), "Judges, Legislators, and Europe's Law: Common-law Constitutionalism and Foreign Precedents" (here on SSRN)

Kenneth Glenn Dau-Schmidt and Carmen L. Brun (Indiana University School of Law-Bloomington and Independent), "Lost in Translation: The Economic Analysis of Law in the United States and Europe" (Columbia Journal of Transnational Law, Forthcoming) (here on SSRN).