3 US law and other legal systems
3.1 Influences of foreign law on US law
The United States received English (common) law, with the exception of
those parts not in accordance with the principles of the new Republic, in
particular Constitutional law, the division of barristers and solicitors, and
feudal elements of property law. English law remained influential after the
foundation of the nation; decisions of English courts are still, though more
rarely, cited as persuasive authority. But English law was not the only influence.
The law in Louisiana is still based to a large (though sometimes overestimated) degree on French and Spanish (civil) law; private law is codified
(Palmer, 1999). Similarly, the law of Puerto Rico still has strong roots in
Spanish law. Moreover, the 19th century saw considerable influence from
German law (Pound, 1937). At the same time, continental philosophical
ideas, particularly from the French and Scottish Enlightenment, were
far more influential on the United States than on England. Its written
Constitution, and judicial review of legislation, represent a significant
difference from ‘purer’ common law systems. Thus the United States is
rather a mixed legal system ‘sui generis’ than a pure common law system
(von Mehren, 2000) and the quip about England and the US being ‘separated by a common law’ is not inaccurate.
3.2 Influences of US law on foreign laws
In the 20th century, as the United States became simultaneously more selfconfident and more parochial, while Europe seemed far less attractive as a
model, US law developed in more isolation. European émigrés found that,
while they were often welcome, their legal traditions were not (Graham,
2002). Foreign influences are now often forgotten or played down in the
United States; Karl Llewellyn, e.g., had to conceal the German origins of the
Uniform Commercial Code. Since the two world wars, the desire to learn
from others has been outweighed by the desire to teach others, and US law
has in turn influenced many legal systems worldwide, a process not unlike
the reception of Roman law in Europe (Wiegand, 1991, 1996). The most
important influence was in constitutional reforms and drafting: constitutionalism, judicial review, enforceable civil rights and a system of checks and
balances between the branches of government have been influential in
numerous countries. A second important area, moved by business and big
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law firms, has been commercial law: antitrust law, securities regulations,
accounting standards, corporate governance,
bankruptcy and also consumer protection and products liability law. There has been notably less
influence in criminal law (with the exception of criminal procedure, e.g. the
right of the accused to remain silent) and traditional areas of private law,
especially property law, family law and law of succession. Reception is rarely
pure. Often US institutions are adapted for their new local settings, influence
is more in rhetoric than in substance, and receiving countries pass laws with
no will or ability to enforce them (Archives de Philosophie du droit, 2001).
US law has also been extremely influential on commercial legal practice.
US law firms have long been big enough to ‘go global’ and open offices all
around the world; US clients have been strong enough to influence the
day-to-day work of non-US attorneys. Many modern contract types
(leasing, franchising, barter) stem from the creativity of US lawyers. The
drafting style has become more American: long, detailed contract documents are more and more replacing the brief documents other legal cultures were used to.
The reason for adopting US law is not always its (perceived) superiority.
Another important reason lies in economics (Dezalay & Garth, 2002): a US
interest, in part altruistic in part not, to bring other countries up to US standard, and the desire of developing countries to appease such pressure, a
process that has been described as hegemonic (Mattei, 2003). Adoption is
sometimes very successful, sometimes not at all. Often the lack of similarities regarding culture and infrastructure of the United States means that
laws on the books were either ineffective (e.g. corporate governance reform
in Vietnam) or outright disastrous (reform of capital markets in Russia).
Lack of sensitivity on the side of American exporters, and desire to please
(the US government and foreign investors) on the side of receiving states
often contribute to unsuccessful legal transplants (Carrington, 2005).
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