American-style adversarial legalism and the European Union

Adversarial legalism – an approach to regulation characterized by strict, legalistic enforcement of detailed legal norms, relying on active judicial intervention and frequent private litigation – has historically been viewed as a uniquely ‘American’ legal style. This paper argues that the process of European integration is encouraging the spread of adversarial legalism across the EU. European integration has unleashed both economic and political pressures that are encouraging the spread of adversarial legalism as an approach to governance. The EU’s ongoing project of market integration and the EU’s institutional structure generate functional pressures and political incentives that have led policy-makers to enact detailed, transparent, judicially enforceable regulations backed by coercive public enforcement and widespread private enforcement. In short, adversarial legalism is spreading as an unexpected - but understandable - byproduct of European integration.

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