January 8, 2012
REGULATION THROUGH LITIGATION: WILL IT FARE ANY BETTER IN EU THAN IT DOES IN US?
R. Daniel Keleman, Eurolegalism: The Transformation of Law and Regulation in the European Union (Cambridge, Massachusetts, & London, England: Harvard U. Press, 2011) ("The central argument of this book is that the process of European integration is encouraging the spread of a European variant of adversarial legalism, which we can call Eurolegalism. Eurolegalism shares the same defining characteristics as American0style adversarial legalism, but due to the moderating influence of entrenched national legal institutions and norms, the version of adversarial legalism that is spreading in Europe is more restrained and sedate than that found in America. European integration is encouraging the spread of Eurolegalism as a mode of governance through two linked causal mechanisms . . . The first mechanism involves the process of deregulation and juridical reregulation linked to the creation of the EU's single market. The economic liberalization associated with the single market has undermined traditionally cooperative, informal, and opaque approaches to regulation at the national level. Deregulation at the national level has been linked to reregulation at the European level, as national regulations that impeded the operation of the single market are replaced with pan-European frameworks, However, most new EU regulations do not resemble the national ones they replaced The increased volume and diversity of players in the liberalized single market and the demands from market participants and governments alike to ensure a 'level playing field' pressure EU policy makers to rely on a more formal, transparent approach to regulation back by vigorous enforcement, often by private parties." "The second mechanism stems from the EUs fragment3d institutional structure and its impact on EU policymaking. When policy makers seek to reregulate at the EU level, they do so in the context of a weak administrative apparatus. The vertical fragmentation between the EU and the member states and the horizontal fragmentation of power between institutions at the EU level (i.e., the Council, the Parliament, and the Commission) generate principal-agent problems that encourage the adoption of laws with strict, judicially enforceable goals, deadlines and transparent procedural requirements, Also, given the EU's extremely limited implementation and enforcement capacities, EU lawmakers have an incentive to create justiciable rights and to empower private parties to serve as the enforcers of EU law. In the absence of a Eurocracy powerful enough to enforce EU law from Brussels . . ., the EU is encouraging the spread of adversarial legalism as a mode of governance that can harness private litigants and national courts for the centralized enforcement of European law." "Euroleglism is emerging as a quite unexpected--and in many circle unwanted--stepchild of European integration, Together, the Eu's institutional structure and its ongoing project of market integration generates political incentives and functional pressures that have led policy makers to enact transparent, justiciable regulations backed by strict public enforcement and increased opportunities for private enforcement. In other words, adversarial legalism is emerging in Europe for much the same reason it emerged decades earlier in the United States. As Kagan has emphasized  in the US case, the combination of 'fragmented governmental authority' and 'fragmented economic power' was crucial to the emergence of adversarial legalism. In the United States, regulation through litigation emerged a a tool of a weak, highly fragmented state attempting to regulate an expansive and highly liberalized economy. So too in Europe." Id. at 7-9. Some, perhaps many, will say that adversarial legalism has not worked out all that well in the United States. Why should it fare any better in the European Union? Anyway, a worthwhile read for those interested in regulation, adversarial systems, EU law, and comparative law.).