Lost in Translation? Nonstate Actors and the Transnational Movement of Procedural Law Benjamin Brake and Peter J+ Katzenstein

Lost in Translation? Nonstate Actors and the Transnational Movement of Procedural Law Benjamin Brake and Peter J+ Katzenstein

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 coun- tries 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 analy- ses 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 by Alan Alexandroff, Karen Alter, Alfred C+ Aman Jr+, Jack Barcelo, Hannah Bux- baum, Matthew Evangelista, Martha Finnemore, Peter Gourevitch, Suzanne Katzenstein, Dan Kele- men, Robert Keohane, Judith Kelly, Sarah Kreps, Maximo Langer, Jens Meierhenrich, Anne Peters, Kim Scheppele, Kathryn Sikkink,Arthur Stinchcomb,Alec Stone Sweet, Sidney Tarrow, and Yu Xing- zhong+ We also benefited enormously from stimulating seminar discussions in law schools at Cornell, Indiana University, New York University, Northwestern University, the University of California, Los Angeles, and the Social Science Center Berlin; on panels convened by the American Political Science Association ~2011! and the International Studies Association ~2012!; and the trenchant comments by several anonymous reviewers and the helpful guidance by the editors of International Organization+ Peter Katzenstein acknowledges with enormous gratitude Louise and John Steffens whose Founders’ Circle Membership at the Institute for Advanced Study at Princeton supported his work during the academic year 2009–10+

International Organization 67, Fall 2013, pp+ 725–57 © 2013 by The IO Foundation+ doi:10+10170S002081831300026X

theory, pedagogy, procedural rules, as well as the organizing structure of the legal profession itself+1 This phenomenon is a highly contested political process that engenders various forms of opposition, ranging from rhetorical hyperbole to leg- islation prohibiting cooperation with U+S+ litigation+

Scholars of international relations concentrate most of their attention on inter- national legalization as it is conventionally understood: the direct spread of law by and among state actors+2 We examine instead the indirect spread of domestic law and legal procedures through the repeated transnational exchanges of numer- ous nonstate actors+3 Our analysis suggests a complex landscape in which non- state actors serve as crucial conveyers of law+4 We thus seek to open an avenue of research into an area of political significance that has been largely overlooked+

The transnational movement and translation of law is grounded in asymmetries of power5 that are rooted in different resource endowments that give some actors compulsory power over others+ Asymmetries are found also in social structures and systems of knowledge that endow actors with different institutional and struc- tural capacities to define, defend, and promote their interests and ideals+ Law’s transnational movement and translation reveal asymmetries in productive power in the diffuse creation of systems of shared meaning+6

Kelemen and Sibbitt catalogue various attempts to explain the movement and translation of American law+7 Although they lament the lack of parsimony in this field of scholarship, the transnational movement and translation of American law emphasizes the importance of power and fit+ American procedural law, this expla- nation holds, spreads more readily among common than civil law systems because institutional and productive power is more easily exercised within, rather than across, legal families+ Borrowing from another legal family is a more arduous pro- cess than borrowing from a legal system that shares a conceptual language to facil- itate the movement and translation of norms and practices+ Although intuitively plausible, a static picture of legal families provides limited insight into the trans- national movement and translation of law+ It assumes the existence of unchanging legal norms and practices in a world defined by cross-fertilization+ For example, the United States in the nineteenth century imported multiple European legal tra- ditions that eventually blended into its distinctive approach to law+

1+ Langer 2004, 1–3+ 2+ See Simmons 2009; Abbott and Snidal 2000; and Abbott et al+ 2000+ 3+ “Transnational” is understood here as Keohane and Nye described: “regular interactions across

national boundaries when at least one actor is a nonstate agent+” Keohane and Nye 1971, xii–xvi+ Our analysis of the transnational political forces involved in the movement of law focuses primarily on domestic law and, except for a few examples, leaves for another day an examination of transnational law, a specialized field of law encompassing both public and private law+ Jessup 1956, 2+

4+ For similar phenomena in the spread of public international law, see Sikkink 2011+ 5+ Because it is explicitly relational and incorporates diffuse power relations, Barnett and Duvall’s

~2005! conceptualization is preferable to the concept of soft power that Nye ~2011! has developed in the past two decades+

6+ Here we do not distinguish further between institutional and structural forms of power+ 7+ Kelemen and Sibbitt 2004, 104+

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The syncretism common then is almost universal today+ In recent years, com- mon law countries have adopted many regulatory statutes that resemble the codes of civil law systems and many civil law countries now operate with precedents+8

Profoundly affected by the transnational movement and translation of law, con- temporary legal systems typically derive from various sources and are intertwined with one another+ Static taxonomies do not capture well processes created by prac- tices that produce and reproduce ever-changing behavioral and symbolic bound- aries+ Political and legal scholarship remains torn on this fundamental point, too often drawing a sharp distinction between legal families while simultaneously show- ing this division to be less relevant in reality+

Drawing on comparative and international legal scholarship, we examine the proto-typically American legal procedures governing class action—a device wherein a single person can represent the interests of a group—and pretrial discovery— the mandatory disclosure of information related to litigation—to better under- stand how adversarial procedures of the U+S+ common law system are diffused and translated into the inquisitorial systems of civil law states+9 Since the move- ment and translation of law is a complex phenomenon and since we examine only two areas of law, these case studies are no more than plausibility probes aiming to opening a door for future work on this underattended area of inter- national politics+ We then discuss coercion, competition, emulation, and learning in the movement and translation of law+ We conclude by relating the discussion to what we regard as complementary styles of analysis in international relations and international and comparative legal scholarship and by placing the move- ment and translation of law in the context of other processes that define a broad global ecumene+10

The Movement of Law and Legal Translation

Horizontal “migration,” “transplanting,” “borrowing,” and vertical “standardiza- tion” are all processes by which laws move+11 These movements occur around nodes of power and prestige+ At the turn of the last century, states looked to Ger- man law for an institutional catalyst to speed development from agrarian to indus- trialized society+12 In recent decades, American procedural law has emerged as an

8+ See Mattei 1994b, 198; and Shapiro 1986, 134–35+ 9+ As Langer ~2005, 838– 47! explains, the adversarial common law system focuses on dispute in

a coordinate model, whereas the inquisitorial civil law system relies on official investigation in a hier- archical model+

10+ Lack of space and knowledge makes us pay less attention than is desirable to transnational legal processes outside of the United States and Europe, including the effects these processes have on Europe and the United States+

11+ Scheppele 2010+ 12+ Mommsen and de Moor 1992+

Nonstate Actors and the Movement of Procedural Law 727

attractive alternative+13 In this way, legal norms and practices co-evolve and co-mingle with those of other states+ This process is not adequately captured by concepts such as legalization ~since the process does not necessarily involve the movement of issues from the political to the legal domain, as civil procedure law is already law!, judicialization ~since the process does not necessarily lead to an increasing reliance on judges!, or rule of law ~since developments that change the content of existing law and institutions can be attributable to many factors and lead to a range of outcomes, from fascism to constitutional democracy!+14

In the era of American primacy the movement and translation of law is reflected in developments like the increasing number of foreign students pursuing a master of laws ~LL+M+! degree in the United States, the attraction of the oral tradition in the common law for civil law lawyers, the expansion of American law firms abroad, the reach of American laws into other jurisdictions, and the direct and indirect effect of American jurisprudence and scholarship+ Such developments influence lawyers who act in, and are shaped by, multiple institutional arenas, including law firms, professional associations, standing conferences, transnational tribunals, and the growing use of U+S+ civil litigation as a tool in the transnational regulatory system+15

Legal Translation

The movement of law into a new system requires overcoming significant obsta- cles+ In common law systems, the meaning of law can often be determined only through close examination of the extensive case law cited in support of a court’s holding+ In civil law systems, lawyers are schooled in deductive methods, with law supplied by abstract rules stated in statutory codes+ Legal studies in civil law countries have thus been described as social science, whereas legal study in com- mon law systems more closely resembles social engineering—law is a flexible tool to address social ills+16 In short, the fundamental differences between civil and common law traditions can exist “more in the area of mental processes, in styles of argumentation, and in the organization and methodology of law, than in positive legal norms+”17

The divergent epistemologies that distinguish civil and common law systems can facilitate or impede the transnational movement and translation of law+18 Insti-

13+ Mattei 1994a+ 14+ Thanks to Suzanne Katzenstein and Anne Peters for this clarification+ Modeled after the concept

of intersectionality in feminist studies, Twining’s ~2006! concept of “interlegality” covers similar con- ceptual terrain+ Slaughter ~2000, 1104! describes the cognate concept of judicial globalization as a “diverse and messy process of judicial interaction across, above and below borders” driven by various causal factors+

15+ Buxbaum 2006, 267+ 16+ Merryman 1974, 870+ 17+ Glendon, Gordon, and Osakwe 1994, 51+ 18+ Legrand 1997, 45+

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tutional complementarities, language, professional and educational ties, and mem- bership within the same geopolitical sphere of influence are some of the factors that facilitate law’s circulation within legal families+ Watson was among the first of many to note that a law’s viable spread and reception requires a reasonable fit between transplanted and local laws+19 The success of any transplant, these schol- ars argue, depends in part on the characteristics of the transplanted law itself and on its ability to graft onto existing legal norms and practices+20 Without necessar- ily adopting the conceptual language of “transplants,” subsequent analyses of the transnational movement and translation of law have supported this central insight+ These analyses direct our attention to the processual character of the movement and translation of law+21 International transactions inevitably give rise to disputes, argumentation, and dispute resolution that generate normatively infused structures and practices before the onset of future interactions repeats the same pattern+ In this view, states, corporations, international governmental and nongovernmental organizations ~NGOs!, and individuals interact in various arenas to make, unmake, and remake law+22

Highlighting the importance of interaction, Koh stresses that transnational legal processes are nontraditional in breaking down the distinction between domestic and international realms of action; nonstatist in focusing also on nonstate actors; dynamic in percolating upward, downward, and sideways among different arenas and actor types; and normative in allowing for the emergence and internalization of new legal norms that propel the process in recursively and self-reflexively into new directions+23 Interaction creates law, and law shapes and guides future inter- actions+ Stone Sweet provides a similarly convincing model that focuses on three elements in the emergence of what he calls the judicialization of global gover- nance+ Transnational exchanges embed dyadic contracting that evolves into triadic dispute-resolution mechanisms+ These mechanisms in turn create and perpetuate a discourse that over time gets absorbed into the reasoning process and repertoires of action of political actors+While the empirical application of Stone Sweet’s model is primarily in Europe, the general model highlights the logics of utility-maximizing strategic action that is embedded within slowly evolving normative structures+24

In contrast to Koh, Stone Sweet avoids the language of internalization, viewing law instead as an evolving structure of managing conflict in which actors contract, dispute, and argue with one another+ Finally, Brunnée and Toope offer an inter- actional account that views the movement and translation of law as occurring in decentralized communities of legal practice grounded in shared social understand- ings rather than codified norms legislated by states+ Of particular interest are fea-

19+ Watson 1976+ 20+ Merry 2006+ 21+ Dezalay and Garth 1998+ 22+ We are indebted to Alec Stone Sweet for clarifying this point for us+ 23+ See Koh 1996, 185–86, 1998, and 2003, 1501–3; and Slaughter 2000+ 24+ Stone Sweet 1999+

Nonstate Actors and the Movement of Procedural Law 729

tures internal to law,—for example, criteria of legality that create legal obligation and promote adherence+25 Though different in emphasis, Koh, Stone Sweet, and Brunnée and Toope’s analyses all highlight how the movement and translation of law generates legal normativity+ And while they attach different weights to self- interest and norms, their different analyses encompass both+26

Building on the conceptual innovations of Koh, Stone Sweet, and Brunnée and Toope, we seek to capture the movement of law as a process of translation that combines new, imported with old, established concepts and practices+ It is shaped by institutional conditions that enable or constrain translation and the resources, strategies, and relationships among political actors+27 It entails the translation of international and foreign law into domestic law+ Translation is a useful metaphor that corrects and complements the insights of conceptual formulations highlight- ing the interaction among legal systems+ This is true, for example, of how Langer views the relationship between legal translation and studies of “legal trans- plants+”28 The influence of American legal practices on other systems, he argues, is not simply a “transplant,” whereby a transplanted organ continues to function as it did in the original body+ Instead, “translation” evokes the uncertainty of the outcome and the notion that a law’s actual practice depends in part on the receiv- ing country’s legal language and the decisions of the legal translator+29 Law’s movement is thus more like the translation of “texts” from “one language”— such as the adversarial system of the United States—to another “language”— such as the inquisitorial systems of civil law states+30 Furthermore, the languages of law, legal doctrine, and legal practice all have generative power+ Like diplo- macy, the transnational movement of law records and creates ongoing conversa- tions and negotiations among legal actors in search of workable translations+ It thus establishes contingent and evolving systems of shared reference+ Ultimately, domestic practice reveals whether, and to what extent, transnational legal trans- lation is actually feasible+

The term legal translation invokes both conceptual and linguistic consider- ations+ The rise in American legal influence has undoubtedly been helped by the ubiquity of the English language+ Today, native speakers and foreign-language users

25+ Brunnée and Toope 2010+ Similar to Koh and Stone Sweet, Brunnée and Toope do not focus on the difficulties of translating law+

26+ The theory of transnational legal processes resembles the transnational-relations perspective that has been a staple of international relations theory over the past three decades+ Risse-Kappen 1995+ Empirical analyses suggested that the “high politics” of state-to-state interactions were increasingly matched by the “low politics” of complex interdependence in which trans-state and trans-national pol- itics complemented or sidelined diplomacy+ Subsequently this analytical perspective came to incorpo- rate transnational social movements+ See Tarrow 2005; Keck and Sikkink 1998; and Finnemore and Sikkink 1998+ It now encompasses not only economic questions but also broader social and environ- mental issues touching on human security understood in the most basic and comprehensive sense+

27+ See Campbell 2004; and Maman 2006, 117–19+ 28+ Langer 2004+ 29+ Knop 2000, 506+ 30+ Langer 2004, 33, 6+

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of English total about one-fifth of the world’s population+31 English has displaced French as the language of diplomacy and German as the language of science+ As the language of the educated class around the world, it has become the global medium of communication+ In the legal community, this is reinforced by the ubiq- uity and accessibility of English-language legal resources that facilitate access to American legal scholarship+ European lawyers, judges, and academics cannot ignore the currents of thought in American law and scholarship+32 Despite the spread of English, however, the transnational movement of law remains always an exercise in conceptual translation because the differences between civil and common law systems are found not only in language but also their “structures of interpretation and meaning” socialized among legal actors through legal education and repeated interactions within the legal community, the courts, and the polity at large+33

We can distinguish several types of translation that illustrate the central role legal actors play in shaping the spread of American law: strict literalism that matches word for word; faithful but autonomous restatement wherein the translator com- poses a text that is equally powerful in the target as in the original language; and substantial recreation, wherein the translator aims to create an appealing text+34 In law, where many terms lack functional English equivalents, true legal translation requires translators to serve as linguists, legal scholars, and hermeneuts engaging in a selective, agent-driven communicative process+35 Legal meaning can vary even when the language is identical+ For example, even though American and British legal systems share many important similarities, legal standards and burdens of proof can differ substantially+36 Legal translators are thus information brokers act- ing also as cultural intermediaries+37 Stated metaphorically, a legal system that translates in order to coerce, compete, learn, and emulate “is a system that makes choices+”38

Governments and NGOs

Different fields of law orbit around different influential nodes, with law flowing in various directions+ Recent decades have revealed how the global movement and translation of law cannot be characterized simply as an “Americanization” of law coerced by the American hegemon+ American legal norms have actually spread in the shadow of unsuccessful state-led legal development programs+ Throughout the 1950s and 1960s, the U+S+ government established various law and development

31+ Crystal 1997, 9+ 32+ Posner 1997, 5+ 33+ See Langer 2004, 10; and Damaška 1997, 839– 40+ 34+ Langer 2004, 33+ 35+ Kahaner 2006+ 36+ Prosser 1992, 342+ 37+ Obenaus 1995, 250+ 38+ Vespaziani 2008, 564+

Nonstate Actors and the Movement of Procedural Law 731

programs to export law to countries engaged in nation-building+ Despite local real- ities and domestic power structures that frustrated the adoption of foreign legal norms, U+S+ programs focused on the direct export of American legal theory, prac- tice, and structure+ Few of the actors involved had any training in comparative or international law, and many participants consider their efforts to have been failures+39

Subsequent scholars similarly highlight the failures of past and present rule-of- law programs, observing that the approaches used by the U+S+ government and others were and remain, as Carothers notes, derived from the American experi- ence and “almost everywhere + + + strikingly similar+”40 Just as the United States struggles to supply law to states in periods of political transition, so too do inter- national governmental organizations ~IGOs!+ As Wilde notes, tasked with admin- istering criminal law, contract and tort, constitutional and administrative law, commercial law, and immigration and asylum law, IGO officials are “performing a role for which they may have little preparation+”41

The failure of government-led rule-of-law programs contrasts sharply with legal- reform efforts spearheaded by NGOs operating under the auspices or in the shadow of the American state+ They include hallmarks of the American polity such as the Ford and Rockefeller Foundations, the Asia Foundation, the American Bar Asso- ciation ~ABA!, and the Fulbright Commission+42 Often operating with government funding or tax exemptions, nonstate legal experts serve as influential conveyers of expertise, including commenting on and delivering drafts of legislation to foreign states+ Among the largest agents of legal reform is the ABA’s Central European and Eurasia Institute ~CEELI!, a project of the ABA directed from more than twenty liaison offices in the former Soviet Union’s successor states+ CEELI maintains a list of thousands of U+S+-based lawyer-volunteers willing to comment on drafts and stands as the largest voluntary association of lawyers in the United States+ In just its first five years, CEELI volunteers provided more than $50 million in pro bono services—that sum increased to $130 million in the next five years+43

U+S+ law schools have also served as important shadow actors facilitating the movement and translation of U+S+ law+ The role of these schools extends beyond merely training foreign lawyers in LL+M+ programs, and includes the sponsoring of visits by U+S+ lawyers and professors overseas+ Relying heavily on government support, CEELI, for instance, oversaw the creation of more than 100 sister rela- tionships between law schools in Central Europe and the United States+44

The emphasis on legal development in organizations such as CEELI accompa- nied the emerging notion of the post-Washington consensus that judicial integrity and poverty are linked, as Sen elaborated in a paper at the World Bank in 2000,

39+ See Larson-Rabin 2007; and Trubek and Galanter 1974+ 40+ Carothers 1999, 160+ 41+ Wilde 2001, 253+ 42+ Maisel 2008, 465+ 43+ Reitz 2003+ 44+ Maisel 2008+

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arguing that multiple aspects of development, including law, should be pursued in tandem+45 This argument triggered an important shift in thinking at the bank, which quickly embraced legal reform through programs designed to: raise the salaries of judges, prosecutors, and public defenders; improve the transparency of judicial processes; and minimize delay of judicial proceedings+46

In this new phase of American interest in exporting legal norms and practices, the legal landscape is populated by a more “complex, varied, and fragmented” array of actors that is not traceable to any single point of agency+47 Rather, a transnational cast of attorneys, often trained in U+S+ law schools, has become a primary conveyer of American legal knowledge and practices+ U+S+-trained law- yers have become especially central in the work of multilateral development agen- cies and banks+48 Though situated in a wide variety of institutions from a large number of countries, these lawyers are overwhelmingly influenced by the Amer- ican Law and Economics movement, which largely favors common law+49 Of the seventy lawyers who participated in the World Bank’s legal associate program between 2004 and 2011, for example, 83 percent acquired an advanced law degree from U+S+ institutions, even though only one is an American citizen ~a dual citi- zen from Peru!+50 Only six studied outside the Anglo-American tradition, and more than half received degrees from just five U+S+ schools: Yale, Harvard, New York University, Georgetown, and the University of Pennsylvania+ Given the bil- lions of dollars the bank directed at judicial reform, the ascendancy of common law in states served by the World Bank reveals much about the global influence of U+S+-trained lawyers+51 Similar favoring of U+S+-trained attorneys can be found elsewhere+ At the World Trade Organization ~WTO! Appellate Body, for exam- ple, five of seven current members received a law degree in the United States+ The educations of former members suggest a similar preference for U+S+ legal training+52

45+ See Sen 2000; and Trubek and Santos 2006+ 46+ Larson-Rabin 2007+ 47+ deLisle 1999, 200+ 48+ Perelman 2006, 531+ 49+ Kennedy 2008, 829+ 50+ World Bank Legal Associates Program+ Available at ^http:00web+worldbank+org0WBSITE 0EXTERNAL0TOPICS0EXTLAWJUSTICE00,,contentMDK:20720418;menuPK:1899631;pagePK :148956;piPK:216618;theSitePK:445634,00+html&, accessed 14 April 2013+

51+ Though lawyers acquire much of their legal reasoning skills while pursuing their first legal degree, it is revealing that the World Bank rewards those attorneys who pursued an advanced legal degree in the United States+

52+ Our thanks to Alan Alexandroff, Ilana Hosios and Mona Pinchis who provided these data+ As they note, however, the preference for U+S+-trained attorneys does not extend to all institutions+ At the International Tribunal for the Law of the Sea ~ITLOS!, a judicial body established to adjudicate dis- putes arising out of the interpretation and application of the United Nations Convention on the Law of the Sea ~UNCLOS!, only four of the twenty-one members received a legal degree in the United States+ While instructive, the weaker, though still significant, preference of U+S+-trained attorneys at ITLOS may be a consequence of political reasons lying outside our analysis, such as the United States not being a ratifying member of the UNCLOS+

Nonstate Actors and the Movement of Procedural Law 733

Law Schools, Mega-law Firms, and the Power of American Law

Without denying the relevance of state actors, nonstate actors are vital to facilitat- ing the movement and selecting the content of law+American legal practices, prod- ucts, and values circulate globally through nonstate actors involved in private market transactions and epistemic networks, as well as through the strategic actions of corporations, lobbyists, and NGOs+ These players, in turn, translate—and thus transform—the American legal norms and practices they encounter+53 This pro- cess brings together a large cast: state and nonstate actors; American and non- American lawyers and their common and civil law practices; exporters or “teachers” involved in the production of law; and importers or “students” receiving law+54

Recognizing the need to look beyond governmental actors to understand the global spread of law, Trubek and his colleagues distinguish between practitioners, law appliers, guardians of doctrine, educators, and moral regulators+55 Through vari- ous activities—teaching, studying, publishing, attending conferences, writing briefs and opinions, and litigating—these nonstate actors facilitate American law’s spread to institutions such as law firms, professional associations, law schools, and trans- national tribunals+

Lawyers are generally elites adhering to the status quo, but when compelled to innovate, they often turn to foreign legal systems with prestige over radical domes- tic solutions+56 With the growing prestige of U+S+ law schools, for example, Amer- ican legal scholars have become prestigious players in the movement and translation of procedural law through teaching foreign students attending elite American law schools and the extensive publication and accessibility of Ameri- can legal journals+57 Foreign lawyers continue to flock to American law schools because of the high quality of legal education and U+S+ esteem in many intellec- tual, artistic, and economic domains+58 Once exposed to American law, these stu- dents display, especially on economic questions, what Watson called a “transplant bias+”59 The attractiveness of the United States as a destination for foreign law students is due in part to the country’s exceptionalism offering primary legal edu- cation as a graduate degree, a feature that enhances the global marketability of U+S+-trained lawyers+60 Such an instrumental explanation does not, however, under- mine the claim that the education these lawyers receive also facilitates the diffu- sion of U+S+ law+ Though U+S+ law schools are sites of exciting legal debates

53+ Trubek et al+ 1994, 411+ 54+ See Reed and Sutcliffe 2001; Levi-Faur 2005, 457; Dezalay and Garth 2002; and Slaughter

2004+ 55+ Trubek et al+ 1994, 416–17+ 56+ Ewald 1995, 499+ 57+ Wiegand 1991, 238, 246+ 58+ Mattei 1994b, 207, Alford 2003+ 59+ Watson 1978, 327+ 60+ Phillips 2007, 940+

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and incubators of new ideas and strategies, they operate with an increasingly narrow, U+S+-centric pedagogy+ In 2007–8, a mere fifteen of the 200 schools accred- ited by the ABA produced half of the law professors in the United States, and just two schools—Harvard and Yale—produced more than 20 percent+61 Though the size of the ten largest international law faculties at European law schools and research institutes is often larger than those of American law schools, the concentration of high-quality legal talent in a handful of select American law schools biases the transnational epistemic legal community in favor of the United States and powers the transnational movement and translation of American legal norms+

The Law and Economics movement in American legal scholarship deserves spe- cial mention for its palpable influence+62 Law and Economics offers a coherent body of theory that looks to efficiency as the mainspring of legal change+ In this framework laws are—or should be—the outcome of cost-benefit analysis and Pareto-optimality+ Put simply, laws are evaluated according to whether they are wealth-maximizing or wealth-enhancing+ Whatever its merits, the popularity of this approach among legal scholars is “paving the way to scholarly Americaniza- tion” by requiring judges to think more like legislators, matching means to ends and taking costs and benefits into account+63

Trained in American schools, an increasing number of foreign students return home as intellectual leaders and policymakers+ They come to the United States because “they feel the leadership @of American law# ,”64 and introducing their new- found knowledge to their home countries prepares the ground for legal innova- tion+ Many who join American-owned mega-law firms end up playing the role of entrepreneurial missionaries for common law practices+After graduation, the grav- itational pull of American firms and legal practices tends to diminish the prestige of their home legal traditions and replaces existing networks of intellectual pro- duction with a U+S+-inflected transnational network of legal actors+ As Trubek and colleagues describe, these students are “pulled out of the orbit” of their domestic legal culture and “into the sphere of influence of the large multinational law firms+”65 Those who return to teach law return as brokers more likely to select from the broad array of legal reasoning and practices they were exposed to at American law schools+

The rise of the mega-law firm in the 1980s and 1990s was synonymous with the rise of American legal practices+66 Between 1986 and 1996, the export of Ameri-

61+ Gordon 2009, 149+ 62+ Teles, 2008, 90–134, 181–219+ 63+ Mattei 2003, 411–12+ For a classic American case illustrating this role, see In re T. J. Hooper,

60 F+2d 737 ~2d+ Cir+ 1932!, finding tugboat owners negligent for not equipping their boats with radio equipment that had become customary in the industry+

64+ Mattei 1994b, 207+ 65+ Trubek et al+ 1994, 407, 455+ 66+ Faulconbridge et al+ 2008, 505+

Nonstate Actors and the Movement of Procedural Law 735

can legal services grew almost twenty-fold, reaching a level roughly four times that of the import of legal services+67 American lawyering moved to the center of the global economy not only because of changes in market demand and the engine of growth embedded within the American model ~partners endowed with capital inter- ests in the firm and the “eat what you kill” remuneration scheme!, but also because of changing regulations+American firms lobbied extensively abroad for legislation allowing foreign lawyers to practice locally+68 The success of their efforts is reflected in the increased U+S+ ~and to a lesser extent UK! dominance of corporate and merg- ers and acquisitions ~M&A! legal work+ By 2007, only three of the top twenty- eight ranked firms in the China and Hong Kong markets were local+Within capital markets none of the top fifteen legal firms in China were domestic+ In Japan none of the top eighteen firms doing M&A were domestic+ A similar weakness in local legal knowledge is widespread in Europe, especially in Germany, where, as Sokol notes, only five local firms constituted the top twenty corporate M&A practices, one of ten capital-market-debt practices, and one of nine capital-market-equity prac- tices+ UK firms were similarly besieged by U+S+-based competitors+ By 2007, only nine of the top twenty firms involved in medium-resourced deals were U+K+-based, with U+S+ firms comprising the remainder+ In sharp contrast, in the United States all of the top-ranked corporate M&A and capital markets firms in 2007 were U+S+- based+69 With the rise of mega-law firms at crucial switch points of the global econ- omy, the stability and lowering of transaction costs economic actors seek has been provided not by the state but by the work of American global law firms that pro- vide internationally uniform contract provisions, arbitration tribunals, and other private-governance solutions to common problems+70

The spread of the mega-law firm model—large, multipurpose, commercially oriented law firms—rests on the foundations of a liberalized global economy that advantages the complex legal services that large American firms can provide+71

In the UK, Germany, and Japan, the shift to more U+S+-style firms occurred after the deregulation of financial markets and before the deregulation of the legal mar- ket+ By now even large European firms, which tended to resist the American law- yering model, provide stable economic solutions by offering services that follow the principles and widely accepted practices of American law+72 Across the com- mon and civil law divide, the interaction of legal cultures in the global market- place is creating a common style that in important legal domains resembles the U+S+ model+73 U+S+ firms may have experienced some difficulties in bridging the gulf between their legal culture and legal practices on the European continent, as

67+ Kaszak 2001+ 68+ Ibid+ 69+ Sokol 2007+ 70+ Flood 2007+ 71+ Martin 2007+ 72+ Flood 2007+ 73+ Bisom-Rapp 2004+

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well as challenges in sustaining their expansion in the face of a global recession, yet American-style “mega-lawyering” is now an institutional feature common to both sides of the Atlantic and other parts of the world+74

The Transnational Movement and Translation of American Procedural Law

Procedural laws prescribe the steps an individual must take to have a right or duty judicially enforced+ Substantive laws, by contrast, create, define, and regulate those rights and duties+ Where substantive rights are often similar among states, differ- ences in procedure often distinguish otherwise similar polities, thus making them useful indicators of law’s movement+75 As Merryman, Clark, and Haley observed, “substantive rules often appear similar but they are brought to bear in such a strik- ingly different manner that contrary results in otherwise similar cases are a con- stant possibility+”76 The right to be free from wrongful injury, for example, may be similar across systems, but how one remedies such a loss may vary greatly+ The procedural rules by which actors raise substantive rights claims, rather than the substantive rights themselves, are thus the most basic features of legal sys- tems+77 In addition, the study of procedural law, a body of rules that gives shape to the roles and functions of lawyers, provides a useful perspective into how a transnational community of nonstate actors serves as an engine in the movement of ideas and practices+ Transnational legal actors, even when litigating a case involv- ing a shared substantive norm, are often confronted by norms and practices that are not shared, many of them procedural+78

The diffusion of U+S+-style procedure is illustrated clearly in the transnational movement and translation of two procedural devices: class-action litigation and pretrial discovery+ The former device is grudgingly acknowledged as furthering the idea of access to justice and the efficiency of mass adjudication;79 the latter is “almost universally regard@ed# + + + as excessive” in both common80 and civil law countries alike+81 Not long ago, both of these procedural tools were criticized as the manifestation of everything wrong with American lawyering+ Even when adopt- ing a form of class action, a device more palatable to continental lawyers than

74+ Faulconbridge et al+ 2008, 483+ 75+ Helmer 2003+ 76+ Merryman, Clark, and Haley 1994, 651+ 77+ Damaška 1991+ 78+ Buxbaum 2006, 296+ 79+ Kelemen 2011, 74–79+ 80+ Lord Advocate, Petitioner, Extra Division, 1998 SC 87 ~10 October 1997! ~UK!+ 81+ Hazard 1998, 1022+

Nonstate Actors and the Movement of Procedural Law 737

expanded pretrial discovery, Europeans resisted American terminology, translat- ing them as “collective redress” or some other variant+82

In the United States, one or more plaintiffs can bring a claim on behalf of a proposed class of persons who have all suffered similar harms+ The political impli- cations of such a tool are immense: class actions empower an individual with a relatively small claim that would otherwise be impractical to litigate to join forces and seek redress, dramatically empowering the “have-nots” against the “haves+”83

Until recently, outside U+S+ courtrooms individuals who had suffered similar harms could not aggregate their claims in the form of a class-action suit in order to share the burdensome cost of litigation+ In civil law states, class actions as a tool of mass justice were opposed, with many civilian jurists deeming them to violate the principle of individual litigation control by binding those not party to the case+84

Like class actions, the U+S+ system of pretrial discovery has been fiercely opposed, with some likening it to the MX missile: “When first conceived, it seemed like a good way to limit the possibility of a surprise attack by one’s opponent at trial+ + + As the years pass, however, there are deep but distant rumbles that sug- gest something is awry+”85 Critics of discovery focus mainly on the room it leaves for abuse by the more powerful party+ With just a few exceptions, a litigant can compel an opposing party to collect and share evidence that might be relevant to the case+ During the pretrial discovery phase in the United States, where the com- mon law system allocates much of the evidence-gathering responsibilities to the attorneys rather than the court, parties can request answers to interrogatories, depo- sitions, the production of documents, and admissions+ Though these procedural devices can result in the disclosure of information that results in the more effi- cient allocation of resources than if the information was not shared by both par- ties, they can also be easily modified into costly weapons used either by a party to impose immense legal costs on an opponent to force a settlement, or by a lawyer to increase the number of hours billed+ In sharp contrast, most civil law systems have generally imposed few burdens on litigants to admit adverse facts, turn over evidence, or otherwise help adversaries develop a case+ Despite their erstwhile unpopularity, U+S+-style discovery has nonetheless cropped up in unlikely settings+86

We offer next for illustrative purposes an examination of class-action suits and pretrial discovery procedures and identify the mechanisms that appear to operate in these legal domains+ Due to seeming incompatibility of the procedures with civil law systems, the spread of these procedures presents two hard cases for the transnational movement of law+ Together, the forms the U+S+ models take in each

82+ Kelemen 2011, 77+ 83+ For an account of the development of American class action, see Yeazell 1987+ 84+ Cappalli and Consolo 1992, 233+ 85+ Setear 1989, 569+ 86+ Helmer 2003+

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country also illustrate the centrality of nonstate legal translators involved in the process+ The spread of these procedures across different world regions and legal families suggests an outcome not of mere convergence caused by common prob- lems, but true reception+87

U.S.-Style Class-Action Suits

For many years class-action suits were a distinctive feature of U+S+ procedure and widely considered incompatible with civil law systems, even to the point of being “inconceivable” in the mind of one civil law jurist+88 “Europe neither needs nor wants U+S+-style class action litigation,” one observer asserted+89 This incompati- bility stemmed from the ideational foundation of law: civil law systems apply law through logical, abstract legal principles and concepts rather than common law, ends-based devices+ As such, a civil law system would more likely turn to legis- lative and governmental administrative actions to solve the collective injuries than it would the “private attorneys general” solution characteristic of American class- action law+ The principle of civil law systems that stood as the greatest obstacle to class-action litigation is the notion of “subjective right+”90 If one applied strictly the logic of Kantian civil law reasoning, the representation and pursuit of group rights could not coexist alongside the traditional individual right model+

Recent experience, however, suggests otherwise+91 As recently as 1992, legal scholars asserted that no comparable procedures existed outside the common law family+92 One lone exception was Brazil+ After being introduced to the concept by Italian scholars of U+S+ law in the 1970s, Brazil introduced procedural reforms allowing for class actions+93 Soon after, a flirtation with the procedure spread to other corners of the civil law world+ Various comparable procedural reforms arose to serve similar functions, including the so-called “associational action” adopted in many European civil law systems+94 In recent years thirteen of the EU’s twenty- seven members have taken steps to strengthen collective redress mechanisms; and at the EU level the commission has made it a priority to expand such rights and is exploring introduction of such mechanisms in consumer protection, competition policy, and other fields+95 Such reforms have succeeded, unhindered by the fact

87+ Wiegand 1996+ 88+ Cappalli and Consolo 1992, 264+ 89+ Hodges 2001, 20+ 90+ Gidi 2003, 312+ 91+ See Deguchi and Storme 2008; Gidi 2003, 402; and Hodges 2009+ 92+ Cappalli and Consolo 1992, 218+ 93+ Gidi ~2003, 324, 326! notes that the idea did not gain momentum in Italy and was roundly

dismissed as “an eccentric fancy of ‘left-wing’ scholars+” He speculates that the practice gained sup- port in Brazil because of the recent end of military dictatorship and the openness to new ways of expanding access to justice+

94+ Gidi 2003, 335+ 95+ See Kelemen 2011, 75–77; and Buxbaum 2006, 295+

Nonstate Actors and the Movement of Procedural Law 739

that officials in those states rejected the adoption of U+S+-style litigation+96 In the most recent comprehensive study of class actions, eighteen countries were found to have adopted at least some form of the device, with an additional four on the cusp of following suit+ The rate of adoption has also proved especially quick, with most of the procedures adopted in the past few years+ The adoption’s breadth defies traditional explanations that confine the reach of legal circulation to within legal families+ Jurisdictions adopting the device include both common and civil law and, among the latter, countries that derive from Napoleonic, German, and Roman law traditions+97 In each, the relative efficiency of mass adjudication, backed by the access-to-justice norm that powers the human rights revolution, overcame the onto- logical contradictions of collective redress+98 Europe’s adoption of class-action devices likely would not have occurred without consideration of both efficiency and access to justice concerns+ Advocates of class action had for decades pro- claimed the device’s efficiency benefits, but it was not until after a European Court of Justice decision in 2001 raised the issues of access to justice that the efficiency argument gained traction+99

Pretrial Discovery

Global distaste for U+S+-style class actions has not been as pronounced as the wide- spread disapproval of American pretrial discovery practices+ The clearest expres- sion of disapproval took the form of blocking statutes that created penalties for cooperating with U+S+-style discovery procedures+ These statutes apply generally and serve multiple purposes, including protection against the reach of certain U+S+ laws and the potential compromise of trade secrets, but they emerged in large part to prevent cooperation with U+S+-style litigation+ They typically carry a penal sanc- tion for the disclosure, copying, inspection, or removal of documents for the pur- poses of aiding pretrial evidence gathering in foreign states+ In 1947, Canada introduced the first such statute in response to a U+S+ federal court order+ Coun- tries facing similar requests responded with comparable statutory obstructions to prevent the encroachment of U+S+ litigation practices+ When the U+S+ Department of Justice investigated suspected oil cartelization in the 1950s, for example, Great Britain, the Netherlands, France, and Italy all issued similar orders prohibiting the removal of documents for the purposes of foreign litigation+As U+S+ litigators came looking for documents related to anticompetitive international shipping practices, similar blocking statutes soon appeared in Germany, Norway, Belgium, and Swe- den+ Foreign disapproval continued after a 1987 U+S+ Supreme Court decision that ruled the international Hague Evidence Convention was neither the exclusive means

96+ Baumgartner 2007, 309+ 97+ See Hensler 2009, 13; and Hodges 2008 and 2009+ 98+ Kelemen 2011, 77–78+ 99+ Courage Lid v. Bernard Crehan, ECJ Case C-453099 ~2001! ECR I-6297+

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nor the first resort by which U+S+ litigators could pursue evidence in the hands of foreign parties+100 To protect against the anticipated onslaught of American dis- covery requests, many states erected their own blocking statutes and parties to the Hague Evidence Convention ratified with the reservation that their courts would not enforce pretrial discovery requests for documents+

Despite this unified front against U+S+-style litigation, there has been an erosion of opposition to pretrial discovery, a legal practice with greater transnational dimen- sions than class-action suits+ U+S+-style discovery practices have spread in part through the powerful position of U+S+ mega-law firms in cross-border litigation, but also through a mechanism that we call “unobtrusive persuasion+” The develop- ment of arbitration and mediation usefully illustrates how iterative exposure to American procedural practices facilitates the movement of law+ Though modern international commercial arbitration originated in continental Europe and was viewed with hostility by U+S+ courts, American influence on the practice began to spread gradually after the first teams of U+S+ lawyers arrived to participate in petro- leum arbitrations after the United States ratified the UN Convention on the Enforce- ment and Recognition of Foreign Arbitral Awards in 1970+101 After U+S+ courts began honoring agreements to arbitrate more than they had previously and Amer- ican lawyers began adjusting themselves to European practices such as the neu- trality and independence of arbitrators, American lawyers delved into the practice with fervor, treating arbitration as a type of U+S+-style litigation, displacing less- acrimonious European practices and introducing familiar American procedural tech- niques+102 Over time, the litigational character of U+S+ arbitration familiarized European counterparts with American practices and laid the groundwork for accep- tance of pretrial discovery+ The tendency against compromise has been reinforced further by the growing number of high-value transactions submitted to arbitration+ With more money at stake, a greater number of higher-paid—and often U+S+- trained—attorneys are joining the fray and reducing opportunities for compromise+

To illustrate how rapidly resistance to U+S+-style pretrial has abated, it is instruc- tive to turn to the best practices of present-day global civil procedure embodied in the combined intellectual efforts of the American Law Institute ~ALI! and the Inter- national Institute for the Unification of Private Law ~UNIDROIT! Principles of Transnational Procedure+103 For nearly a decade, these two groups assembled lead- ing practitioners and scholars of civil procedure to draft a consensus on what would serve as a model code of procedure for transnational cases—cases involving enter- prises or litigants from different legal systems+ The principles and rules that par- ticipants ultimately agreed to reflect how far foreign legal practices have come to resemble some of the formerly less-admired, even despised, pretrial discovery pro-

100+ Societe Nationale Industrielle Aerospatiale v. U.S. District Court for the Southern District of Iowa, 482 U+S+ 522 ~1987!+

101+ Wiegand 1996, 140– 42+ 102+ Helmer 2003, 47+ 103+ ALI and UNIDROIT 2006+

Nonstate Actors and the Movement of Procedural Law 741

cedures in the United States+ For example, although almost two-thirds of the group hails from civil law systems and countries as varied as Bermuda, Japan, Scotland, and Russia, the authors nonetheless praise the fact that civil procedures around the world increasingly deviate from the tradition of holding multiple short hearing sessions for the receipt of evidence and are approaching instead the common law practice of single-episode trials, noting that, “civil law systems have tended to consolidate the interchanges between court and parties into fewer and more encom- passing hearings+”104 A comment to one proposed rule explicitly notes that the authors favor such a “unitary final hearing,” which in turn requires a preliminary phase much like the U+S+ system of discovery in order to prepare for a “concen- trated presentation” of the evidence+105 Another codifies this shift, requiring, “so far as practicable,” that the final hearing be concentrated in a way consistent with common law trials, an outcome that reflects both the practicality of arbitrating a multijurisdictional dispute as well as the gradual familiarity and acceptance of U+S+- style litigation+106 This shift toward U+S+ practices was far from inevitable, as the American practice of discovery developed in large part due to the presence of the jury system, also largely an American phenomenon+ As Gidi describes, “the struc- tural division of proceedings into pretrial and trial phases allowed development of a system of discovery, which, in turn, justified the relaxation of the rules of plead- ing+”107 The adoption of discovery practices into systems that lack juries comes with not only the substantial transaction costs associated with any procedural reform, but also the unnecessary inefficiency associated with the adoption of procedural rules that provided efficient solutions to the unique set of institutional constraints of the legal system of origin+

The final product of the ALI0UNIDROIT project includes additional comments that suggest a gradual acceptance of U+S+ discovery processes, even amidst cri- tiques of the U+S+ legal system+ For instance, the group identified discovery as the least attractive parts of the U+S+ system+ In most civil law countries, either a dis- puting party has a substantive right to a particular document in another’s posses- sion, or the court exercises its authority to require the production of such evidence once its existence and relevance is known+ In the United States, by contrast, fed- eral rules insist on the disclosure of any material that “appears reasonably calcu- lated to lead to the discovery of admissible evidence+”108 This broad scope is the aspect of U+S+ pretrial discovery that the authors most dislike+ In the shadow of its criticism, however, the commentary to the rules articulates the group’s desire for a middle ground, citing Peruvian Guano, an English colonial decision from 1882 concerning the discoverability of evidence+ In that case, which rings familiar to U+S+ practitioners, the court held that litigants have an obligation to disclose every

104+ Ibid+, li+ 105+ Ibid+, 131+ 106+ Ibid+, 144+ 107+ Gidi 2003, 316–17+ 108+ U+S+ House 2010, 36 ~Rule 26~b!~1!, emphasis added!+

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document that “relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may—not which must—either directly or indirectly enable the party + + + to advance his own case or to damage the case of his adver- sary+”109 @sic# The authors of the Principles call instead for the disclosure of “doc- uments + + + which, it is not unreasonable to suppose, + + + contain information which may, either directly or indirectly enable the party + + + either to advance his own case or to damage the case of his adversary+”110 The gulf between the U+S+ stan- dard of “reasonably calculated” and the ALI0UNIDROIT standard of “not unrea- sonable to suppose” is certainly not as great as the authors maintain, and suggests a substantial shift of continental procedure toward U+S+-style legal practices+

A related step toward American-style evidence gathering included in the Prin- ciples is a provision allowing parties to request documents directly from the other party rather than through a judge+ Moving further still toward U+S+-style discov- ery procedures, the model rules include rights to depositions, which are “regarded as improper in many civil law systems+”111 Driving the point home that the ALI0 UNIDROIT rules call for a method of discovery far closer to the U+S+ model than that practiced on the European continent, the authors note explicitly that discov- ery in civil law systems is “more restricted” or, as they concede, “nonexistent+”112

The group thus appears to have struggled to locate the sought-after middle ground between common law and civil law pretrial procedures+ Instead, unobtrusive per- suasion appears to have generated civil law jurists more comfortable with adver- sarial American procedural law+


One swallow does not a summer make; and two legal issues do not clinch an argu- ment+113 The movement and translation of these two American legal procedures does, however, suggest a different mode of inquiry than the approaches most schol- ars of international and comparative politics take+ The focus on nonstate actors and indirect processes of diffusion opens up new areas of research beyond the confines of conventional realist or statist perspectives+ The cases illustrate that Amer- icanization reflects different features of the United States+ Backed by the access- to-justice norm, the competitive efficiency gains of U+S+-style class action have entered into civil law systems+ Similarly, the high costs of discovery have not deterred civil lawyers from adopting the device in part because, through Ameri- can legal training and participation in legal proceedings involving American law

109+ Compagnie Financière du Pacifique v. Peruvian Guano Company, ~1882! 11 QBD 55 ~CA!+ 110+ ALI and UNIDROIT 2006, 9+ 111+ Hazard, Taruffo, Sturner, and Gidi 2001, 776+ 112+ ALI and UNIDROIT 2004, 118 ~rule 22, comment R-22E!+ 113+ We are following here Cartwright’s ~2007, 24– 42! pluralist understanding of how social and

legal analysis warrants causal claims by both broadly vouching and narrowly clinching arguments+

Nonstate Actors and the Movement of Procedural Law 743

firms abroad, they have, over time, been unobtrusively persuaded by this proce- dural innovation+

In their study of the Japanese and European law, Kelemen and Sibbitt likewise observe the spread of American law+ For them, the demand for U+S+-style law emerged primarily because of the growing utility of legal representation in an increasingly liberalized marketplace+114 By treating this liberalization as an exog- enous factor, they overlook important mechanisms that vary in their capacity to explain the spread of different legal norms and practices+ For example, our discus- sion shows how the spread of American procedure came after years of failed state- led programs+ After 1945 American policymakers had limited success exporting law, despite the hegemonic position the United States enjoyed in different parts of the world+ Unilateralism did not establish a focal point+ By contrast, during the past two decades U+S+-style litigation spread even though it was often despised and belittled abroad+ Causal mechanisms such as efficiency, access to justice, and unobtrusive persuasion varied by issue and jurisdiction+ Operative mechanisms were of different types, involved scale shifts, and operated at different levels of abstrac- tion+115 Gambetta’s analysis of the concatenations of different mechanisms is par- ticularly relevant to our findings+116 Legal systems and their reforms are elastic traditions of practice and discourse, the result of political battles fought by law- yers, intellectuals, politicians, and bureaucrats+117 It follows that local and global legal norms and practices are not fated to converge on a single developmental trajectory modeled on the American system+ Rather, in complex processes of inter- action, legal practices and discourses evolve that reflect and justify different strat- egies, including maintaining, adapting, or transforming domestic law+

Rationalist explanations push toward premature closure of analysis+ Our two cases, whereby the efficiency gains of class action and the high costs of pretrial discovery both penetrated civil legal systems, uncover a mix of mechanisms that place parsimonious explanations of efficiency in relation to other mechanisms such as access-to-justice norms and unobtrusive persuasion+ Concatenation gives us bet- ter leverage on the data than parsimony+

Our analysis invites one final reflection on the unresolved tension that exists in international legal and political scholarship about the difference between common and civil law systems+ Economically inclined theories of the movement of legal norms and practices point to efficiency as the force behind the dynamic expansion of American law+ Sociologically inclined theories point to differences in legal sys- tems’ receptivity to new norms and practices and the different meanings they acquire in the process of translation into a new legal ecology+ Numerous studies provide adherents of both perspectives with ample data to support their claims+ Imagine

114+ Kelemen and Sibbitt 2004, 109+ 115+ Tarrow 2005, 120–24+ 116+ See Gambetta 1998, 103–5, 121; and Twining 2005, 205– 6, 213–14+ 117+ Leheny and Liu 2010+

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the transnational movement of law as an ocean wave, with different legal systems marked by differently colored corks floating on top+ Americanization moves the wave in one direction, while Europeanization, Islamicization, Sinicization, Indian- ization, or Japanization might have moved it in another+ The corks bob up and down, with some drifting closer together, others further apart+ Whether standing on solid ground on the shore or floating on a raft among the corks, after the wave passes observers will report, in good faith and based on accurate observation, dif- ferent conclusions about whether the relation among the corks was changed by the ocean swell+ In a similar fashion, legal scholarship has not reached a consen- sus in the analysis of the movement of procedural law+ Zekoll,118 Kerameus,119

and others observe a notable trend toward convergence of civil procedures, at least within Europe+ Others argue that while many countries have adopted procedural reforms, they have done so without serious comparative study, creating further divergence between them+120 Since there are many ocean waves and many corks, no single scholar or research program is in a position to offer a comprehensive and definitive assessment of the ocean’s swell and the corks’ movements+ And so it is in the field of comparative and international law when it grapples with the transnational movement and translation of law+

Mechanisms in the Transnational Movement and Translation of Law

Diffusion—the process of adopting or borrowing various devices, implements, insti- tutions, or beliefs—offers one plausible way of capturing the processual character of the movement and translation of law+121 We know that diffusion does not nec- essarily lead to convergence because the objects of diffusion can vary across time and space+ Inquiring into the specific mechanisms to gain a better understanding of those sources of variation is often as important as understanding the dynamic of the diffusion process itself+

Mechanisms help specify the causal relationships among situation, actor, dis- course, practice, and the emergent structural properties of different contexts+ Over time, we may be able to generate a preliminary inventory of mechanisms to con- nect processes to practices, as well as identify plausible hypotheses to aggregate disparate practices at the individual level and to discern observable uniformities at the collective level+122 Operating at both levels, legal analysis highlights the causal

118+ Zekoll 2006+ 119+ Kerameus 1997+ 120+ See Jolowicz 2004; and Damaška 1991+ 121+ Simmons, Dobbin, and Garrett 2007, 9+ 122+ See Gerring 2010; George and Bennett 2005, 137, 141– 42; and Hedström 2005, 11, 25–26,


Nonstate Actors and the Movement of Procedural Law 745

complexity of the transnational movement and translation of law and its attendant practices+123

Diffusion can occur through multiple overlapping mechanisms that operate in and across the different domains of law+124 Legal translation is an active process that is less evident in emulation than in mechanisms of competition or learning+ Emula- tion operates by scripts that follow from models judged to have legitimate ends and appropriate means+ Emulation evokes prestige-seeking and follow-the-leader rhet- oric that trump evidence-based comparison+ In law’s movement and translation, the articulation of hegemonic ideas or the creation of focal points through unilateral action are measures of prestigious or powerful actors’ legal leadership+ One mea- sure is the capacity of legal concepts like the procedural rules we described to exert influence within and across legal families+A system is a leader when, either in whole or in part, its laws are discussed and adapted by more legal systems than any other+ Leading ideas become hegemonic and influence others when they are presented and discussed as broad social phenomena not tied to the concrete experience of a spe- cific context, country, or actor+125 The role of leader or hegemon can fall to either a civil or common law system, as it did for France and then Germany in the nine- teenth century and the United States since the mid-twentieth century+

A second mechanism, competition, typically operates in a less hierarchical and more decentralized manner, thus creating grounds more favorable for legal trans- lation+ Competition highlights actors’ strategic interdependence and consider- ations of relative efficiency, as reflected in the gradual adoption of class-action devices by legal systems that previously denied litigants the opportunity to aggre- gate claims+Although competition often points to a competitor’s policy reforms as a proximate cause for the movement of law, it alone does not reveal the deeper beliefs that explain how and why a specific competitive challenge is met in a par- ticular way, or why some policies are adopted despite their recognized costs, such as U+S+-style pretrial discovery+ Such beliefs come into play in some areas of law more often than in others+ As illustrated by the two legal procedures examined here, costs and benefits interact with and nest amidst other mechanisms such as access-to-justice norms and unobtrusive persuasion+

Though few would consider American law superior to other legal systems, Wiegand argues that competition and efficiency have enhanced the perception of American legal approaches as useful in the construction of legal environments conducive to economic growth+126 Under such beliefs, many legal provisions first developed in the United States, such as leasing, factoring, and franchising, spread to Europe after World War II, despite considerable doctrinal legal difficulties posed by European conceptions rooted in Roman legal traditions+ Because the efficiency

123+ Bunge 2004, 193+ 124+ Simmons, Dobbin, and Garrett 2007+ Our discussion builds on this far-ranging exposition of

diffusion mechanisms+ 125+ See Mattei 1994a and 1994b, 195+ 126+ Wiegand 1991 and 1996+

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gains of American-style trusteeship were smaller, such devices did not spread as readily+ Other areas of law associated with the efficiency of the American econ- omy such as corporations, banking, and bankruptcy law also made great inroads into Europe, as did American legal norms and practices observable in other areas of economic law, including the protection of minority shareholders, the prohibi- tion of insider trading, and various other legal protections+ In the second half of the twentieth century, the United States took the lead in developing such norms— their export to foreign jurisdictions soon followed+127

An important consequence of competition is law’s politicization in which more lawyers, litigation, and laws blur boundaries within the legal world as well as between the world of law and other sociopolitical domains+128 This boundary blur- ring is illustrated by the popularity of Law and Economics, in which the role of judges is expanded, as well as the increasing international reception of American- style alternative dispute resolution measures outside the courtroom as in inter- national commercial arbitration+129 Negotiation, once the domain of politics, “has been embraced as part of the legal realm+”130

Learning is another mechanism relevant to legal translation+We learn when we change beliefs or alter our confidence in those beliefs because of new observa- tions, interpretations, or repertoires of practice+ Simple learning refers to the choice of means for a given end; complex learning a change in ends+131 Learning is very much affected by the sources that channel it, in particular the actors, networks, or institutions that validate what is to be learned+ Epistemic communities of profes- sional experts such as lawyers steeped in the arcana of procedural law are often important in developing ostensibly theoretical solutions for presumed problems, as illustrated by the unobtrusive persuasion in the case of pretrial discovery, an unwieldy and often costly procedural reform that gradually earned foreign adher- ents through exposure in U+S+ law schools, work with U+S+ mega-law firms, and by example and experience in transnational litigation+

Laws translate more readily when the target legal system belongs to the same legal family+132 This readiness holds for the colonial period and its coercive impo- sition of law, as well as the postcolonial period when various channels of exchange diffused legal institutions and practices along legal family lines through emula- tion, competition, and learning+ Legal family correlates with a range of important outcomes, including financial development, government ownership of banks, entry regulations, incidence of military conscription, government ownership of the media, formalism of judicial procedures, and judicial independence+133 Pervasive pro-

127+ See Galanter 1992; and Kelemen and Sibbitt, 2004+ 128+ Galanter 1992, 17–22+ 129+ Dezalay and Garth 1998+ 130+ Galanter 1992, 22+ 131+ Haas 1990+ 132+ See La Porta, Lopez-de-Silanes, and Shleifer 2008; and Damaška 1997+ 133+ La Porta, Lopez-de-Silanes, and Shleifer 2008, 286, 307–8+

Nonstate Actors and the Movement of Procedural Law 747

cesses of legal movement and translation, however, tend to erode differences between legal cultures+ It is not intrinsic differences between legal families but distinct processes and practices that explain the readiness for or resistance to the transnational movement and translation of law+

Emulation, competition, and learning exist in the complex web of complemen- tary and sometimes contradictory processes of reasoning that develop in different legal systems+ Persuasive argumentation operates differently in legal systems that require different modes of presentation, for example, in American and European domestic trials,WTO dispute-settlement proceedings, and truth and reconciliation commissions+ In these settings, the social sources of authority to which persuasive strategies appeal differ+ The instrumental logic taken for granted by American actors lacks the sense of being “normal” for actors inhabiting other legal systems+ Norm- governed legal and social institutions require different argumentative strategies, even when rules appear identical+ Indeed, “the similarity of rules,” Merryman notes, “is in most cases an unreliable indicator of the convergence or divergence of legal systems+”134 Emulation, competition, and learning alert us to commonalities and differences revealed and obscured, at one and the same time, by civil and com- mon law systems+ Civil law systems, for example, incorporate various common law techniques in the form of judges clarifying ambiguities and incomplete aspects of judicial codes+135 Although common law countries are not direct descendents of Roman law, elements of it were nonetheless affected by the Roman tradition+ The Napoleonic civil law code has similarly had a discernible impact on numerous common law countries+136

In brief, competition and learning have been more vital than emulation or coer- cion in the transnational movement and translation of laws such as class action and pretrial discovery, both of which emerged within one legal family and were then adopted by another+ These mechanisms operate across different domains of power and law, as well as within and across common and civil law systems+ Imparted through legal education, repeated interactions among legal profession- als, court proceedings, and other legal practices, they help us track the transna- tional movement and translation of law+

Conclusion: A Social Optic for Analyzing Law’s Transnational Movement

Although the abundant compulsory power of the United States did little to pro- mote the export of formal rule-of-law reforms, U+S+ institutional, structural, and productive power each contributed greatly to the spread of American procedural

134+ Merryman 1981, 385+ 135+ David and Brierley 1978, 59– 66+ 136+ See, for example, Fairgrieve 2007+

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law+ American law does not get lost in translation+ Whatever their successes or failures, American law and legal practices have been a very important node in the transnational movement and translation of law+ But in the judicialization of global politics the United States has been profoundly ambivalent—unable to stop this process—or, at best, a reluctant bystander+137 Alter has documented what can only be described as a revolution in the judicialization of world politics during the past forty years+138 With Europe leading the way, more than 100 quasi-legal and ad hoc systems as well as twenty-six permanent international courts have emerged to assess compliance with international law+ Many have compulsory juris- diction and grant access to nonstate actors+ These tribunals—both global and regional—are thus closer to the ideal of a transnational than a traditional inter- state dispute resolution mechanism+ Since at least the end of the Cold War the European Court of Justice and the European Court of Human Rights ~ECtHR! have served as a template for constructing strong economic, criminal, and human rights courts embedded in regional contexts+ The ECtHR has also emerged as a node around which substantive rights norms have developed and spread, as illus- trated when the U+S+ Supreme Court’s majority opinion decriminalizing sodomy referred to the ECtHR decision doing the same twenty-two years earlier+139 U+S+ status as a constitutional hegemon has waned along with the rise of Europe as a global leader in substantive rights protections+ But whereas clear leaders are emerg- ing in the realm of particular substantive rights, world constitutions have shifted away from the U+S+-model document toward no model in particular, suggesting instead the emergence of a global constitutional order that is polycentric and multi- polar with no dominant leader+140 World constitutions now orbit multiple nodes, including regional and international templates like the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, as well as novel updates to constitutions in smaller states such as Canada+141

Like its leadership in the development of substantive rights, the creation of lib- eral legal rules of global finance, as Abdelal has shown, is also very much a Euro- pean project+142 The United States favored unilateral or bilateral approaches to create an ad hoc international order+ The true champions of a rule-based, multilat- eral liberal order for finance were French and German+ The 1988 European liber- alization directive brought France a giant step closer to an integrated European monetary policy at the price of swallowing the German insistence for the erga omnes principle—full liberalization of capital accounts among EU members as well as between EU members and all other states+ With EU enlargement and a

137+ Romano 2009+ 138+ Alter 2011 and 2013+ 139+ See Dudgeon v. United Kingdom ~1981! 4 EHRR 149; and Lawrence v. Texas, 539 U+S+ 558

~2003!+ 140+ Law and Versteeg 2011, 77+ 141+ Ibid+, 8+ 142+ Abdelal 2007, 69–70, 208+

Nonstate Actors and the Movement of Procedural Law 749

proliferation of treaties that the EU signed with other states, this provision spread quickly through the international system+ Led in the 1980s and 1990s by a remark- able group of French politicians and bureaucrats, the EU, Organisation for Eco- nomic Cooperation and Development ~OECD!, and International Monetary Fund ~IMF! consolidated this legal order+ For better and for worse, France, Germany, and the EU thus became a legal center of the global financial order+

The overlapping of national, regional, and international jurisdictions has also propelled the development of national security laws+ In this field, the movement of law is vertical rather than horizontal+143 After 9011 many states saw their secu- rity as threatened by both international terrorism and a possible break between the United Nations and a wounded, go-it-alone United States+ UN Security Coun- cil Resolution 1373 thus came to provide a template for counterterror legislation+ Around the world, regional organizations and states with different legal systems moved to adopt an international standard that radiated out from the United Nations+ Compliance was not tightly coordinated, leading to variegated legal outcomes+ Since the laws were often broad and vague, their implementation introduced fur- ther variability+ Despite widespread compliance with Resolution 1373, national and regional customization left law’s international movement without a common legal framework+ International law thus created legal obligations that prompted domestic legal change, yet in the absence of a legal leader the variety of domes- tic frameworks reproduced a spectrum of local standards rather than a single inter- national one+ Deploying an apt metaphor, Scheppele compares the outcome to the parallel play rather than coordinated games of preschool children+ In short, these examples paint a legal landscape organized around multiple nodes and inhab- ited by a diverse cast of actors+144 Their efforts to export, import, and ultimately translate laws illustrate nonstate actors’ ability to alter balances of practice between citizens and the state and to transmit ideas of law and procedural rights across legal families+

We have assumed that the spread of American law is a process legal systems incorporate in different ways+ For practical reasons, we have not provided empir- ical support for this claim+145 It remains for future scholarship to establish the extent to which the transnational movement and translation of law transforms other legal systems, increases or decreases convergence around shared legal norms and practices, and encourages or discourages legal convergence or pluralization+ We expect that the movement of law reconfigures rather than erodes local traditions+ Due in part to the enabling and constraining effects of institutions and the gener- ative role of language, legal imports are processed differently by different legal

143+ See Scheppele 2010; and Buxbaum 2006+ 144+ Space prevents us from describing other nodes such as constitutional, criminal, or inter-

national trade law+ 145+ See Langer 2004 and 2007; and Teubner 1998+ As Maman ~2006, 116! observes in his case

study of Israeli corporate law, “examining the translation process is only possible via a detailed case study that engages in thick description and process tracing+”

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systems, often eliminating some differences while creating new ones+146 Langer’s case studies, for example, include reforms in several civil law systems that moved them toward American-style civil and criminal procedures+147 Importing the same American-style procedures, Langer shows, affected legal systems differently because of the different structures of meaning already present in the receiving countries, even when the recipient countries were all civil law countries+ The transnational movement of law is similarly affected profoundly by different translations pro- cesses, suggesting that it does not lead to a mere duplication of American institu- tions and practices+148

Our discussion of law’s transnational movement and translation builds on a sizable theoretical literature+ Class-action and pretrial discovery procedures sup- port our perspective’s plausibility+ And the analysis of mechanisms spans discrete empirical issues+ Our hope is to focus international relations scholars’ attention on an underattended though politically consequential domain of international law— nonstate actors and procedural law+ Scholars of international relations generally view law in world politics from rationalist-formalist and social perspectives+149

The first highlights the importance of states, international governmental organiza- tions, efficiency, and regulatory norms; the second inquires into the context in which states and international organizations operate and examines how available choices and repertoires of action are constituted in the first place+150 The broader, second perspective incorporates into the analysis nonstate actors, constitutive norms, and legal process+151 Analyses of public international law that assume an asocial inter- national system as the relevant context are therefore especially useful when they are embedded in the broader social perspective+ Only then can we analyze fully how and why law is shaped by both state and nonstate actors, the regulatory and constitutive aspects of law, and static attributes and interactive dynamics+

Law’s movement and translation occur around and between different nodes and, depending on the context, merit different labels: Americanization, Europeaniza- tion, Sinicization, Indianization, Japanization, or Islamicization+152 Law is only one domain where such processes can be observed+ To acknowledge the existence of other nodes or cognate processes is not to belittle the importance of either the United States or law+ Rather it puts both in a broader perspective worthy of sys- tematic analysis by scholars of world politics and international and comparative

146+ Ajani 1995, 95+ 147+ Langer 2004+ 148+ Kahaner 2006+ 149+ Both are included in Ratner and Slaughter’s ~1999! review of seven different schools of thought

in international law+ They speak to an intellectual tension discernible in many social sciences, between “moving outward into the grand historical machinations of class and cash, power and privilege, or moving inward to the nubs and slubs in the fabric of meaning and belief+” Just 1992, 376+

150+ See Goldstein et al+ 2000; Abbott et al+ 2000; and Abbott and Snidal 2000+ 151+ See Finnemore and Toope 2001; Goldstein et al+ 2000; Brunnée and Toope 2010; and Reus-

Smit 2011+ 152+ See Katzenstein 2010, 2012a, and 2012b+

Nonstate Actors and the Movement of Procedural Law 751

law who are willing to trade in their snug and comfortable American- and Euro- centric suits for unfamiliar, looser garments+ The transnational movement and trans- lation of law does not crystallize around the limited visions of even the most powerful, competitive, and prestigious actors or legal systems in world politics+ Particular claims to universal validity remain just that, claims that always remain open to political challenge and reinterpretation+ At the onset of the twenty-first century the transnational movement of law is helping reconstitute a dynamic global polity+ The United States and Americanization do not define this movement by themselves; they do, however, comprise important facets of that ecumenical process+


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