The Global Diffusion of U.S. Legal Thought: Changing Influence, National Security, and Legal Education in Crisis

During the twentieth century, the center of production of legal ideas shifted from France to Germany and then to the United States. Here, the dominant legal reasoning framed the law as a phenomenon of social organization that was not confined to a specific legal system. There were both external and internal factors influencing U.S. legal thought which explain this change of wind from continental Europe to the United States. Externally, after World War II the United States garnered influence by positioning itself for political and economic global leadership. Internally, the critique of social purpose functionalism articulated by the legal realists provided new problem-solving approaches integrated in a reconstructive and pragmatic understanding of law called positive-sociology functionalism. Finally, legal diffusion occurred through public law disciplines based on U.S. constitutional law theories of rights, neo-formalism, and balancing conflicting policy analysis. The diffusion of legal education takes place through law schools, non-governmental organizations (NGOs), international financial institutions (IFIs) and other avenues, and with different political agendas, often in conjunction, for instance, with law and development reforms or more broadly due to the prestige of U.S. legal training and academia. U.S. legal thought reached Latin America, Asia, Europe and Africa through the transplant of legal institutions. The diffusion of U.S. legal styles often changed the process rather than the content of legal education, which resulted in local curriculum reforms that reflected the more pragmatic U.S. education style. Some scholars have harshly criticized the export of U.S. legal thought for its distinct adversarial judicial process that decentralizes power and privatizes disputes while creating advantages for the powerful and wealthy, expanding inequality and social stratification. Others have instead claimed that the diffusion of teaching methods geared to the adoption of U.S.-based clinical legal education aims at informing, adapting, and promoting social justice in a way that addresses the contextual realities of the importing country.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1251/thumbnail.jp

Conceptions of Justice from Below: Distributive Justice as a Means to Address Local Conflicts in European Law and Policy

The impact of European Union (EU) law and policy on social groups has been examined in important scholarly work on European Law. Mainstream European legal scholarship, however, makes seldom use of a ‘law and society’ methodology, committed to an understanding of law, its internal logic and its practice yet influenced by external political and social forces. By means of two different theoretical perspectives, American legal realism and Amartya Sen’s idea of comparative justice, this chapter focuses on the impact of European decision-making on social groups and local actors embracing different conceptions of justice from below. Lawyers, judges and policy-makers in the EU appear more concerned with institutional demands of justice rather its social realization as revealed by local actors with conflicting visions of justice. The chapter uses distributive justice as a means to reconcile such different visions of the good life.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1250/thumbnail.jp

The Italian Model to Fight COVID-19: Regional Cooperation, Regulatory Inflation, and the Cost of One-Size-Fits-All Lockdown Measures

What has come to be known worldwide as the Italian model to fight COVID-19 was a series of governmental measures undertaken in early 2020 to reduce the contagion of a deadly virus ravaging the northern regions of Italy—especially Lombardy, Veneto, and Piedmont. These measures included quarantine or lockdown throughout the Italian territory, together with the revamping of hospitals, followed by economic recovery packages to address the standstill of the national economy. This Article focuses on the strengths and weaknesses of the Italian model. By highlighting the initial missteps, we can understand how this turned into a productive national and regional coordination model through a learning-by monitoring process. However, the Italian model was implemented at a high cost, due to the overextension of executive action and the lack of territorial differentiation. After the President of the Italian Republic suggested stronger parliamentary involvement in the executive lockdown measures, the legislative branch began to give full legal force to the governmental provisional regulations. Rather than tailoring the regulatory measures according to the impacted regions, the government imposed a long and widespread lockdown throughout the country by means of an overregulation and bureaucratization of social life, which produced high human and economic costs for the country. In hindsight, the Italian government did not narrowly tailor the lockdown measures or lift them in those regions with limited infections. As a result, this widespread and micromanaged governmental action has created new and effective administrative processes of regional–national cooperation in public health, but it has also triggered distrust toward the way in which public authorities managed the pandemic during the different phases of the COVID-19 pandemic

It\u27s All About Pasta: Protectionism, Liberalization, and the Challenge for Quality and Sustainability of Made in Italy

This article traces the evolution of the regulation of Italian pasta from the beginning of the twentieth century until today. We show how during Fascism the production of wheat became a national battle, and pasta turned out to be the traditional product promoted by Mussolini\u27s propaganda. During the 1960s, new regulations of Italian pasta made exclusively with durum wheat contributed to strengthening the Italian industry during the nation\u27s economic boom. Spaghetti became a global symbol of the Dolce Vita, linking Italian pasta to a fashionable and aesthetically desirable way of life. The Italian Parliament adopted a law that obligated the production of dried pasta to be made exclusively with durum wheat, while fresh pasta was made by a mixture of soft and hard wheat. With the establishment of the European Community Customs Union in 1968, followed by the plan to establish a single market in the late 1980s, Italian pasta regulations restricting the labeling of such pasta to durum wheat products were soon caught by European authorities as a protectionist measure. The struggle for the liberalization of Italian pasta took place in the late 1980s before the European Court of Justice, followed by the Italian Constitutional Court. Through reregulation by the Italian Parliament, the protectionist legislation was set aside, allowing for the arrival of soft wheat pasta from Northern Europe into the domestic market. Despite fears that the consumption of durum wheat pasta would be fatally displaced, our article shows how a confluence of new regulatory measures ranging from labeling, geographical indicators, antitrust, and consumer protection legislation together with EU tariff barriers towards third countries, enabled Italian pasta producers from Southern Italy to thrive rather than disappear. Additionally, the flourishing of a Slow Food culture and attention to local production went hand-in-hand with world-wide sustainability goals of pasta Made in Italy that is praised for its health, affordability, and environmental benefits. Pasta containing durum wheat remains the primary product consumed by Italians and exported abroad. This steady demand has revamped old and new local production allowing small pasta companies to prosper through the support of the Italian government and its ongoing struggles with Brussels. However, whether such economic development has a direct impact on the Mezzogiorno remains fuzzier, especially through the displacement of informal economies and new forms of competition coming from soft wheat and grains such as spelt and barley that might change consumer demand and create new challenges for local industries

The Values-Based Trade Agenda

With the increasing trade tensions between the United States and China, pressures created by Brexit, and the COVID-19 pandemic, most trade scholars have focused on rising protectionism exhibited through defensive strategies such as tariffs and export controls. However, this focus ignores the fundamental shift in international trade goals of the United States and the European Union towards a values-based trade agenda. Instead of merely focusing on free trade based on efficiency and market access, trade regulators on both sides of the Atlantic have independently pursued measures designed to address environmental sustainability and social equity. These policies resonate with their domestic constituencies and allows them to promote their values along global supply chains. These values-based agendas, however, are likely to create new trade conflicts rather than partnerships. This is due in part to the fact that the transatlantic trade relationship remains embedded in international regulatory frameworks predominantly focused on efficiency gains and cutting red tape to ease the flow of products and services. Through two comparative case studies on cosmetics and medical devices, we highlight how the promotion of competitive liberalization in transatlantic trade has not generated the promised harmonization result. Instead, it has created social and environmental inequities. The case studies point out that to incorporate social and environmental equity adjustments for vulnerable and marginalized communities, trade regulators, negotiators, and lawyers alike ought to assess the ex-ante distributive effects in regulatory cooperation and the ex-post enforcement tools of regulation of their valuesbased trade agenda

Defending Democracy Through Law: The Establishment of the Legal Service of the European Parliment

Democracy, as well as the rule of law, is one of the founding values of the European Union. With the recent rise of some authoritarian governments in Europe, scholars have focused primarily on the efforts led by the European Commission and the European Court of Justice (“ECJ”) to curb democratic backsliding. While European institutions have struggled defending the rule of law inside the Union through lawsuits and economic sanctions against those governments, the history of integration shows how the European Parliament (“EP”) led the efforts to cure the democratic deficit existing in the European institutional system. Since the end of the 1970s, attempts to democratize the European Communities (“EC”) have put at the center of the integration project the EP representing the citizens of the Member States. However, until the mid-1980s, the EP, because of its heritage, has remained a relatively weak decision-maker compared to its counterparts—the Council and the Commission. The growing role of the EP as a co-equal legislative branch through achieving full legal status remains a relatively unknown history in the struggle to democratize the European Union. This article re-tells the history of how achieving this status became possible, through legal mobilization before the ECJ, to create, inter alia, the conditions to establish the Legal Service of the EP in 1986. By way of the legal action before the ECJ, we trace how the Legal Service, despite support and pushbacks inside their institution, contributed in shaping the constitutional principle of institutional balance in order to empower the EP vis-à-vis the other European institutions. The establishment of an entirely representative EP, equipped with a powerful administration including an independent Legal Service, started to re-balance the asymmetric relation between executive and legislative powers, governments and parliaments, governors and the governed inside the Communities. On the basis of the documents at our disposal, two different legal strategies seemed to arise in Luxembourg. The first one aimed at prioritizing above all the introduction of actions before the ECJ, in order to highlight the increasing role of the EP and probably also driven by the ambition of its Jurisconsult to establish a powerful bureaucracy. In contrast, the second strategy, without denying the importance of the actions before the ECJ when necessary, was based on an incremental attempt to create the conditions that would allow the establishment of an independent Legal Service for a fully accountable EP. This second strategy of democratization through law helped in driving the EP towards its current role as a central player in defending the rule of law and preserving a democratic decision-making process inside the European Union

The Failure to Grapple with Racial Capitalism in European Constitutionalism

Since the 1980s prominent scholars of European legal integration have used the example of U.S. constitutionalism to promote a federal vision for the European Community. These scholars, drawing lessons from developments across the Atlantic, concluded that the U.S. Supreme Court had played a key role in fostering national integration and market liberalization. They foresaw the possibility for the European Court of Justice (ECJ) to be a catalyst for a similar federal and constitutional outcome in Europe. The present contribution argues that the scholars who constructed today’s dominant European constitutional paradigm underemphasized key aspects of the U.S. constitutional experience, including judgments that favored states’ rights doctrines that buttressed the social plagues of slavery and laissez faire policies that reinforced economic inequality. This selective reception of the U.S. experience, bracketing racial subordination and neoliberal policies under the rubric of states’ rights, propelled European constitutionalism into a neverland—one that claimed to draw inspiration from U.S. constitutionalism, while simultaneously dismissing as irrelevant some of its most profound socio-economic challenges. This is important, we argue because the dominant European constitutional paradigm not only provides a distorted picture of U.S. constitutionalism but also inhibits a deeper understanding of the European one due to its inability to grapple with racial capitalism, embedded both in its colonial past and its present ECJ anti-discrimination jurisprudence

The Global Diffusion of U.S. Legal Thought: Changing Influence, National Security, and Legal Education in Crisis

During the twentieth century, the center of production of legal ideas shifted from France to Germany and then to the United States. Here, the dominant legal reasoning framed the law as a phenomenon of social organization that was not confined to a specific legal system. There were both external and internal factors influencing U.S. legal thought which explain this change of wind from continental Europe to the United States. Externally, after World War II the United States garnered influence by positioning itself for political and economic global leadership. Internally, the critique of social purpose functionalism articulated by the legal realists provided new problem-solving approaches integrated in a reconstructive and pragmatic understanding of law called positive-sociology functionalism. Finally, legal diffusion occurred through public law disciplines based on U.S. constitutional law theories of rights, neo-formalism, and balancing conflicting policy analysis. The diffusion of legal education takes place through law schools, non-governmental organizations (NGOs), international financial institutions (IFIs) and other avenues, and with different political agendas, often in conjunction, for instance, with law and development reforms or more broadly due to the prestige of U.S. legal training and academia. U.S. legal thought reached Latin America, Asia, Europe and Africa through the transplant of legal institutions. The diffusion of U.S. legal styles often changed the process rather than the content of legal education, which resulted in local curriculum reforms that reflected the more pragmatic U.S. education style. Some scholars have harshly criticized the export of U.S. legal thought for its distinct adversarial judicial process that decentralizes power and privatizes disputes while creating advantages for the powerful and wealthy, expanding inequality and social stratification. Others have instead claimed that the diffusion of teaching methods geared to the adoption of U.S.-based clinical legal education aims at informing, adapting, and promoting social justice in a way that addresses the contextual realities of the importing country.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1251/thumbnail.jp

What\u27s Love Got to Do with It? Stereotypical Women in Dispositionist Torts

https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1255/thumbnail.jp