1. Sylvia Ostry, Governments and Corporations in a Shrinking World: Trade and Innovation Policies in the United States, Europe and Japan (New York: Council on Foreign Relations Press, 1990); Pietro Nivola, “American Social Regulation Meets the Global Economy” in Comparative Disadvantages? Social Regulations and the Global Economy, edited by Pietro Nivola (Washington, D.C.: Brookings Institution, 1997).

2. Union of Industrial and Employers' Confederations of Europe, Releasing Europe's Potential through Targeted Regulatory Reform (Brussels: UNICE, 1995), 43; Organisation for Economic Co-operation and Development, The OECD Jobs Study: Unemployment in the OECD Area 1950–1995 (Paris: OECD, 1994); David Coe and Dennis Snower, “Policy Complementarities: The Case for Fundamental Labour Market Reform,” IMF Staff Papers 44 (1997).

3. Economic Planning Agency, Government of Japan, Economic Survey of Japan (1993–1994) 336, 354.

4. See Pietro Nivola, “American Social Regulation Meets the Global Economy,” David Vogel, “Trouble for Us and Trouble for Them: Social Regulations as Trade Barriers,” and Marc Landy and Loren Cass, “U.S. Environmental Regulation in a More Competitive World,” all in Comparative Disadvantages? Social Regulations and the Global Economy, edited by Pietro S. Nivola (Washington, D.C.: Brookings Institution, 1997); Thomas Church and Robert Nakamura, “Beyond Superfund: Hazardous Waste Cleanup in Europe and the United States,” Georgetown International Law Review 7 (1994): 56.

5. Martin Shapiro, “The Globalization of Law,” Indiana Journal of Global Legal Studies 1 (1993): 37. Brigitte Unger and Frans van Waarden, eds., Convergence or Diversity? Internationalization and Economic Policy Response (Avebury:Aldershot, 1995).

6. See generally Robert A. Kagan, “Should Europe Worry about Adversarial Legalism?” Oxford Journal of Legal Studies 17 (1997): 166–83.

7. See notes 28, 29, 32–37.

8. Robert A. Kagan, “Adversarial Legalism and American Government,” in The New Politics of Public Policy, edited by Mark Landy and Martin Levin (Baltimore: Johns Hopkins University Press, 1995), also published in Journal of Policy Analysis and Management 10 (1991): 369–406.

9. See, e.g., Karen Palmer, Wallace E. Oates, and Paul R. Portney, “Tightening Environmental Standards: The Benefit-Cost or the No-Cost Paradigm?” Journal of Economic Perspectives 9, no. 4 (fall 1995): 119–32; Adam Jaffe, Steven Peterson, Paul Portney, and Robert Stavins, “Environmental Regulation and the Competitiveness of U.S. Manufacturing: What Does the Evidence Tell Us?” Journal of Economic Literature 33 (1995): 132–63; Congressional Budget Office, Environmental Regulation and Economic Efficiency (Washington, D.C.: Congressional Budget Office, 1985); Michael Porter and Class van der Linde, “Toward a New Conception of the Environment-Competitiveness Relationship,” Journal of Economic Perspectives 9 (fall 1995): 97–118.

10. For some preliminary efforts, see Leigh Anderson and Robert A. Kagan, “Adversarial Legalism and Transactions Costs: The Industrial Flight Hypothesis Revisited,” International Journal of Law and Economics 20 (March 2000).

11. For other examples of this strategy, see John Braithwaite, To Punish or Persuade: Enforcement of Coal Mine Safety (Albany: State University of New York Press, 1985); Braithwaite, “The Nursing Home Industry,” in Beyond the Law: Crime in Complex Organizations, vol. 18, Crime and Justice, edited by Michael Tonry and Alberg J. Reiss Jr. (Chicago: University of Chicago Press, 1993), 11–54; Richard Wokutch, Worker Protection, Japanese Style (Ithaca, N.Y.: ILR Press); John T. Scholz and Wayne Gray, “OSHA Enforcement and Workplace Injuries: A Behavioral Approach to Risk Assessment,” Journal of Risk and Uncertainty 3 (1990): 283–305; Robert A. Kagan, “How Much Does Law Matter? Labor Law, Competition, and Waterfront Labor Relations in Rotterdam and U.S. Ports,” Law and Society Review 24 (1990): 35.

12. See Tom Tyler, Why People Obey the Law (New Haven, Conn.: Yale University Press, 1990); Patricia Ewick and Susan Silbey, The Common Place of Law (Chicago: University of Chicago Press, 1998).

13. William Graham Sumner, Folkways (Boston: Ginn and Company, 1907).

14. See Murray Edelman, The Symbolic Uses of Politics (Urbana: University of Illinois Press, 1964). Even if this view is overstated, it is true that whereas American antipollution laws have required industry to spend billions of dollars each year on abatement equipment, Congress has appropriated less than 1 percent of those amounts for governmental monitoring of air and water quality. Bruce Ackerman and Richard Stewart, “Comment: Enforcing Environmental Law,” Stanford Law Review 37 (1985): 1333; C. S. Russell, “Monitoring and Enforcement,” in Public Policies for Environmental Protection, edited by Paul Portney (Washington, D.C.: Resources for the Future, 1990).

15. Gerald Nash, State Government and Economic Development: A History of Administrative Policies in California, 1849–1933 (Berkeley: Institute of Governmental Studies, 1964).

16. Robert A. Kagan and Jerome Skolnick, “Banning Smoking: Compliance

17. Michael Lewis-Beck and John Alford, “Can Government Regulate Safety? The Coal Mine Example,” American Political Science Review 74 (1980): 745.

18. Organisation for Economic Co-operation and Development, The State of the Environment (Paris: OECD, 1985).

19. Thomas Erdmann, Kenneth Feldman, Frederick Rivara, David Heimbach, and Harry Wall, “Tap Water Burn Prevention: The Effect of Legislation,” Pediatrics 88 (September 1991): 572.

20. Curtis Milhaupt and Geoffrey Miller, “Regulatory Failure and the Collapse of Japan's Home Mortgage Lending Industry: A Legal and Economic Analysis,” Law and Policy in International Business 29 (1997): 1.

21. See Ian Ayres and John Braithwaite, Responsive Regulation (New York: Oxford University Press, 1992); Robert A. Kagan and John T. Scholz, “The ‘Criminology of the Corporation’ and Regulatory Enforcement Strategies,” in Enforcing Regulation, edited by Keith Hawkins and John Thomas (Boston: Kluwer-Nijhoff, 1984).

22. See, e.g., Neil Gunningham, “Negotiated Non-compliance: A Case Study of Regulatory Failure,” Law and Policy 9 (1987): 69.

23. Braithwaite, To Punish or Persuade; Braithwaite, “The Nursing Home Industry”; Eugene Bardach and Robert A. Kagan, Going by the Book: The Problem of Regulatory Unreasonableness (Philadelphia: Temple University Press, 1982).

24. See, e.g., John T. Scholz and Feng Heng Wei, “Regulatory Enforcement in a Federalist System,” American Political Science Review 80 (1986): 1249; Robert A. Kagan, “Regulatory Enforcement,” in Handbook of Regulation and Administrative Law, edited by David Rosenbloom and Richard D. Schwartz (New York: Marcel Dekker, 1994).

25. See, e.g., Neil Shover, John Lynxweiler, Stephen Groce, and Donald Clelland, “Regional Variation in Regulatory Law Enforcement: The Surface Mining Control and Reclamation Act,” in Enforcing Regulation, edited by Keith Hawkins and John Thomas (Boston: Kluwer-Nijhoff, 1984); Bridget Hutter, The Reasonable Arm of the Law? The Law Enforcement Procedures of Environmental Health Officials (Oxford: Clarendon Press, 1988); Kagan, “Regulatory Enforcement.”

26. Among the studies that do probe this issue are Braithwaite, To Punish or Persuade, and “The Nursing Home Industry”; Bardach and Kagan, Going by the Book; Katherine Harrison, “Is Cooperation the Answer? Canadian Environmental Enforcement in Comparative Context,” Policy Analysis and Management 14(1995): 221; and John Scholz and Wayne Gray, “OSHA Enforcement and Workplace Injuries: A Behavioral Approach to Risk Assessment,” Journal of Risk and Uncertainty 3 (1990): 283. See also Bridget Hutter, Compliance: Regulation and Environment (Oxford: Clarendon Press, 1997); and Alex Mehta and Keith Hawkins, “Integrated Pollution Control and Its Impact: Perspective from Industry,” Journal of Environmental Law 10 (1998): 61.

27. Mehta and Hawkins, “Integrated Pollution Control.”

28. Jonathan P. Charkham, Keeping Good Company: A Study of Corporate Governance in Five Countries (Oxford: Clarendon Press, 1994), 357.

29. Thomas Church, Robert Nakamura, and Christopher McMahon, Cooperative

30. Harriet Vinke and Ton Wilthagen, The Non-mobilization of Law by Asbestos Victims in the Netherlands: Social Insurance versus Tort-Based Compensation (Amsterdam: Hugo Sinzheimer Institute, University of Amsterdam, 1992).

31. Deborah Hensler and Mark Peterson, “Understanding Mass Personal Injury Litigation: A Socio-Legal Analysis,” Brooklyn Law Review 59 (1993): 962, 1004; John C. Coffee Jr., “Class Wars: The Dilemma of the Mass Tort Action,” Columbia Law Review 95 (1995): 1343.

32. John Langbein, “The German Advantage in Civil Procedure,” University of Chicago Law Review 52 (1985): 823–66.

33. Takao Tanase, “The Management of Disputes: Automobile Accident Compensation in Japan,” Law and Society Review 24 (1990): 651–74.

34. Gary Schwartz, “Product Liability and Medical Malpractice in Comparative Context,” in The Liability Maze, edited by Peter Huber and Robert Litan (Washington, D.C.: Brookings Institution, 1991).

35. David Vogel, National Styles of Regulation (Ithaca, N.Y.: Cornell University Press, 1986); Lennart Lundqvist, The Hare and the Tortoise: Clean Air Policies in the United States and Sweden (Ann Arbor: University of Michigan Press, 1980).

36. Steven Kelman, Regulating America, Regulating Sweden: A Comparative Study of Occupational Safety and Health Policy (Cambridge, Mass.: MIT Press, 1981).

37. Joseph Badarraco, Loading the Dice: A Five-Country Study of Vinyl Chloride Regulation (Cambridge, Mass.: Harvard Business School Press, 1985); Ronald Brickman, Sheila Jasanoff, and Thomas Ilgen, Controlling Chemicals: The Politics of Regulation in Europe and the United States (Ithaca, N.Y.: Cornell University Press, 1985).

38. Langbein, “The German Advantage in Civil Procedure,” 823.

39. Mirjan Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven, Conn.: Yale University Press, 1986).

40. P. S. Atiyah and R. Summers, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions (Oxford: Clarendon Press, 1987).

41. Surveys and experiments have shown that attorneys and insurance claims

42. See Badaracco, Loading the Dice; Brickman, Jasanoff, and Ilgen, Controlling Chemicals; Vogel, National Styles of Regulation; Harvey Teff, “Drug Approval in England and the United States,” American Journal of Comparative Law 33 (1985): 567.

43. Daniel Okimoto, Between MITI and the Market: Japanese Industrial Policy for High Technology (Stanford, Calif.: Stanford University Press, 1989), 158. See also David Wallace, Environmental Policy and Industrial Innovation: Strategies in Europe, the U.S. and Japan (London: Royal Institute of International Affairs, 1995).

44. Vogel, National Styles of Regulation.

45. See Terry Moe, “The Politics of the Bureaucratic State,” in Can the Government Govern? edited by John Chubb and Paul Peterson (Washington, D.C.: Brookings Institution, 1989); Kagan, “Adversarial Legalism and American Government,” 369.

46. Bardach and Kagan, Going by the Book; Robert A. Kagan, “The Political Construction of Adversarial Legalism,” in Courts and the Political Process: Jack W. Peltason's Contributions to Political Science, edited by Austin Ranney (Berkeley: Institute of Governmental Studies, 1996); George Hoberg, Pluralism by Design (New York: Praeger, 1992); Martin Shapiro, Who Guards the Guardians? Judicial Control of Administration (Athens: University of Georgia Press, 1988); Michael McCann, Taking Reform Seriously: Perspectives on Public Interest Liberalism (Ithaca, N.Y.: Cornell University Press); R. Shep Melnick, “Pollution Deadlines and the Coalition for Failure,” in Environmental Politics: Public Costs, Private Rewards, edited by M. Greve and F. Smith (New York: Greenwood, 1992).

47. Carol Greenhouse, Praying for Justice: Faith, Order and Community in an American Town (Ithaca, N.Y.: Cornell University Press, 1986); Robert C. Ellickson, “Of Coase and Cattle: Dispute Resolution among Neighbors in Shasta County,” Stanford Law Review 38 (1986): 623; Stewart Macaulay, “Non-contractual Relations in Business: A Preliminary Study,” American Sociological Review 28 (1963): 55; Robert A. Kagan, “The Routinization of Debt Collection,” Law and Society Review 18 (1984): 323. See, generally, Richard Miller and Austin Sarat, “Grievances, Claims and Disputes: Assessing the Adversary Culture,” Law and Society Review 15 (1981): 525; Marc Galanter, “Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about Our Allegedly Contentious and Litigious Society,” UCLA Law Review 31 (1983): 4; Deborah Hensler et al., Compensation for Accidental Injuries in the United States (Santa Monica, Calif.: Rand Institute for Civil Justice, 1991).

48. Joseph Sanders and Craig Joyce, “Off to the Races: The 1980s Tort Crisis and the Law Reform Process,” Houston Law Review 27 (1990): 207–96; John H. Cushman Jr., “Many States Give Polluting Firms New Protections,” New York Times, April 7, 1996, A1, A12.

49. Joseph Rees, Reforming the Workplace: A Study of Self-Regulation in Occupational

50. See John Cushman Jr., “EPA and States Found to be Lax on Pollution Law,” New York Times, June 7, 1998, 1.

51. Kagan, “Should Europe Worry about Adversarial Legalism?”

52. Wolfgang Wiegand, “Americanization of Law: Reception or Convergence?” in Legal Culture and the Legal Profession, edited by Lawrence M. Friedman and Harry N. Scheiber (Boulder, Colo.: Westview Press, 1996); Yves Dezelay and Bryant Garth, “Merchants of Law as Moral Entrepreneurs: Constructing International Justice from Competition for Transnational Business Disputes,” Law and Society Review 29 (1995): 27–64.

53. Jeffrey Sellers, “Litigation as a Local Political Resource: Courts in Controversies over Land Use in France, Germany, and the United States,” Law and Society Review 29 (1995): 475–516.

54. See studies cited in notes 9 and 10.

55. In one case the company, Ford Motor Company, did not express any desire to maintain its identity secret. See chapter 6 of the current volume.

56. We have no reason to suspect that there are systematic differences between cooperating companies and those that declined; that is, differences that would be reflected in or that arose from their legal experience. We got the strong impression that corporate officials who declined to agree to a full case study did so not because of greater sensitivity concerning what might be found or disclosed, but because they were less interested in the project intellectually or feared that the research would make disruptive time demands on company officials.

57. See Bardach and Kagan, Going by the Book; Mehta and Hawkins, “Integrated Pollution Control and Its Impact,” 61.

58. Wokutch, Worker Protection, Japanese Style.