Monday, July 22, 2013
Toby S Goldbach , Benjamin Brake and Peter Katzenstein (Cornell University - Law School , Government Department, Cornell University and Cornell University) have posted The Movement of US Criminal and Administrative Law: Processes of Transplanting and Translating (Indiana Journal of Global Legal Studies, Vol. 20, No. 1, 2013) on SSRN. Here is the abstract:
This article examines the transplanting and translating of law in the domains of criminal procedure and administrative law. The transnational movement of law is full of unexpected twists and turns that belie the notion of the United States as a legal behemoth. Furthermore, the movement of legal procedures which occurs both within and across countries with common and civil law legal traditions challenges preconceived notions of an orderly divide between legal families. While the spread of elements of the U.S. jury system and methods of plea bargaining reveals the powerful influence of U.S. legal ideas, the ways that these procedures undergo processes of translation also illustrates the growing prevalence of legal syncretism. The uneven record of transplanting and translating principles of U.S. domestic administrative law into international organizations exemplifies pluralism in the absence of a global legal hegemon. Our aim is to draw attention to the interaction between international and domestic legal factors and to show that multiple legal products shape processes of transplanting and translating, thus creating a polymorphic legal world often characterized by syncretic practices. The new normal is broad consultation of a range of international models and a facility for translating multiple or even conflicting legal practices. This presents opportunities for positive legal change and complicates efforts to locate clear sources of power in the movement of law.