The Movement of U.S. Criminal and Administrative Law: Processes of Transplanting and Translating

44 Pages Posted: 13 Jul 2013 Last revised: 26 Aug 2013

See all articles by Toby S. Goldbach

Toby S. Goldbach

University of British Columbia, Allard School of Law

Benjamin Brake

Cornell University

Peter Katzenstein

Cornell University

Date Written: July 1, 2013

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.

Keywords: Legal Transplants, Transnational Law, Global Administrative Law, Criminal Procedure, Chinese Law, Judicial Review

Suggested Citation

Goldbach, Toby Susan and Brake, Benjamin and Katzenstein, Peter, The Movement of U.S. Criminal and Administrative Law: Processes of Transplanting and Translating (July 1, 2013). Indiana Journal of Global Legal Studies, Vol. 20, No. 1, 2013, Available at SSRN: https://ssrn.com/abstract=2293162

Toby Susan Goldbach (Contact Author)

University of British Columbia, Allard School of Law ( email )

1822 East Mall
The University of British Columbia
Vancouver, British Columbia V6T 1Z1
Canada
6048271891 (Phone)

HOME PAGE: http://allard.ubc.ca/about-us/our-people/toby-goldbach

Benjamin Brake

Cornell University ( email )

Ithaca, NY 14853
United States
609 851-2505 (Phone)

Peter Katzenstein

Cornell University ( email )

Ithaca, NY 14853
United States

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