Towards a Transatlantic Community of Law? The Use of Law between the EU and US Legal Orders: Questions of Legal Form and Characterisation

Forthcoming in Elaine Fahey and Deirdre Curtin (eds.), A Transatlantic Community of Law: Legal Perspectives on the Relationship between the EU and US legal orders (Cambridge University Press, 2014).

Posted: 30 Nov 2013

See all articles by Elaine Fahey

Elaine Fahey

City, University of London - City Law School

Date Written: November 28, 2013

Abstract

There is a still a discernible view in scholarship about the insignificance of law to transatlantic relations, as an ‘institutional-light’, ‘law-light’ unfixed scientific entity. However, many distinctive ‘interactions’ and rule-making exercises take place in contemporary times between the EU and US legal orders, for example, the development of the broad adoption of EU rules in the US, major EU-US rule convergence in data protection, an institutionalised Transatlantic Trade and Investment Partnership (TTIP) or even the EU intervening frequently before the US Supreme Court. Some of these developments are argued here to indicate the institutionalisation of transatlantic relations. Others are argued to indicate what is termed here as specific degrees of ‘proximity’ between the EU and US legal orders, i.e. closeness in instruments, structures or interactions, formal and informal, more specifically defined than a NATO-esque ‘Atlantic Area’. They (i.e. institutionalisation and close proximity) raise the question of the relationship between them as phenomena. Cumulatively, they form the basis for reflections here, by way of a future research agenda, on what the phenomenon of a ‘transatlantic community of law’ between the EU and US actually means in contemporary times. Recent developments also provokes a reflection upon to our understanding of the character of ‘real world’ interactions between legal orders and perhaps questions of their legitimacy.

This account explores how law serves as a medium for communication between the two legal orders, sometimes outside of the strictly conventional bilateral context of EU-US agreements and conventional dispute resolution forums (termed here ‘non-bilateral’), only possible on account of the high quasi-institutionalisation of the relationship or at least very high proximity between the two legal orders. However, it is also shown here that there are boundaries or limitations on this proximity or closeness and major legitimacy questions also. For example, the limitations of mutual recognition in transatlantic justice cooperation are evident from an analysis of bilateral rule-making in security post 9/11. By contrast, in more recent times, the high proximity between the two legal orders results instead in more novel forms of bilateral rule-making, leading to the consideration of the movement of rules between the two legal orders in the phenomena of rule-transfer.

Keywords: EU foreign relations, EU-US relations, Legal theory, Mutual Recognition, Boundaries of legal orders

JEL Classification: K00, K33

Suggested Citation

Fahey, Elaine, Towards a Transatlantic Community of Law? The Use of Law between the EU and US Legal Orders: Questions of Legal Form and Characterisation (November 28, 2013). Forthcoming in Elaine Fahey and Deirdre Curtin (eds.), A Transatlantic Community of Law: Legal Perspectives on the Relationship between the EU and US legal orders (Cambridge University Press, 2014).. Available at SSRN: https://ssrn.com/abstract=2361055

Elaine Fahey (Contact Author)

City, University of London - City Law School ( email )

Northampton Square
London, London EC1V OHB
United Kingdom

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