In the wake of intensified global economic competition, economic liberalization, waves of immigration, and the rise of European Union governance, many observers suggest that there has been a sharp diminution of the long-standing differences between hierarchically-organized European legal processes and the more fragmented, malleable “adversarial legalism” of the United States. It is not easy to find meaningful quantitative indicators of convergence (or of continued divergence) in systems as complex and multi-faceted as contemporary legal systems. I argue, however, that six salient features of the American way of law have not emerged and are unlikely to emerge in European legal systems.

Two of these differences are structural or procedural: (1) the political nature and powerful remedial powers of American judiciaries; (2) the high levels of adversarial legalism in the American regulatory process. The next four differences are substantive, relating to differences in the content of bodies of law that are central to the experience of citizens: (3) laws and institutional practices that make American tort law uniquely threatening; (4) the more limited rights to social provision and employee protections that prevail in American law; (5) the less demanding obligations of American tax law; (6) America’s more punitive criminal sanctions, more permissive gun laws, and greater reliance on adversarial legalism in criminal adjudication and police accountability. These six differences are not likely to narrow significantly, I will argue, since they are rooted in the distinctive features of American and European political structures, political belief systems, and legal cultures.

How do frontline regulatory offices make sense of and enforce new ambiguous statutes? In order to understand the process of constructing the meaning of ambiguous law at the street-level, this dissertation focuses on horizontal interaction among frontline offices--- does inter-organizational interaction between frontline offices influence their interpretations and enforcement decisions, and if so, how and under what conditions?

Based on a national survey and in-depth interviews with frontline regulators, Ministry of Environment, and regulated entities in the context of the Japanese environmental regulations, supplemented by a two-week period of observations on the frontline in Japan, this research shows that inter-office interaction is as important as the micro-level factors (e.g., institutional factors relating to single office and characteristics of individual regulator) for understanding how street-level interpretations and enforcement decisions develop. Faced with legal ambiguity under a decentralized legal system, frontline offices commonly contact peer offices to make sure that their legal interpretation and enforcement decision is appropriate. Such consultation behavior helps develop shared, consistent understandings of which interpretations and enforcement decisions are within the law—what is referred to as meso-level schemas in this research. Such schemas function as generators of legal meaning and sources of legitimacy under conditions of legal ambiguity. The term meso-level signifies that this justification mechanism takes place between the local, micro-level (i.e., by individual regulators and within individual offices) and the macro-level of national legal design and top-down mandates. Meso-level schemas rest on horizontal relationships developed among frontline offices that are informally connected to each other.

Quantitative analyses demonstrate that frontline offices belonging to peer office meeting groups are more likely to contact peer offices, and in general, more likely to stringently enforce the statutes than those not so connected. Also, statistical analyses show that different meeting bodies have developed different levels of enforcement stringency, other relevant variables being controlled. In summary, quantitative analyses indicate that (1) the meaning of ambiguous statutes is influenced not only by individual, micro-level factors but also the inter-organizational dynamics in which street-level offices are situated, and (2) different inter-organizational bodies can develop different meaning of law.

Interview analyses illuminate how inter-office interaction influences street-level enforcement, and reveal three roles of inter-office interaction in shaping the meaning of law, all of which are conducive to generating consistent enforcement across jurisdictions. First, under legal ambiguity and risk/harm uncertainty, consistent enforcement across jurisdictions can work as an endorsement, a signal showing that street-level rule application is accurate and fair. Second, inter-office interaction offers a prototype of interpretation that other offices can follow, and third, it provides a learning opportunity wherein offices can learn enforcement expertise from peer offices.

By focusing on legitimacy concerns of street-level offices, interview analyses also illustrate why and under what conditions meso-level schemas are employed and why they encourage stringent enforcement. The analyses illuminate the mechanisms of how contingent power dynamics between regulatory offices and regulated entities create a strong need for offices to demonstrate enforcement legitimacy vis-à-vis regulated entities, which encourages offices to utilize meso-level schemas. In addition to the significant presence of regulated entities, scarce public scrutiny over Japanese environmental enforcement reinforces the general implementation tendency to emphasize false positive risk (overly regulating non-harmful business activity) rather than false negative risk (not regulating harmful activity). Moreover, insufficient legal expertise, little access to external sources of arguments, and insufficient internal training can hinder frontline offices from enforcing the statutes under legal ambiguity because of the fear of challenges and objections from regulated entities. Under such conditions, meso-level schemas appeal to street-level offices, especially when offices do not find adequate support for making legal arguments about enforcement that may face challenges from regulated entities. For frontline offices with little enforcement expertise and insufficient internal training, meso-level schemas are effective for eliciting compliance, countering possible challenges from regulated entities, and reinforcing their enforcement legitimacy.

The dissertation concludes by joining empirical findings with theoretical arguments, discussing the conditions under which inter-office interaction can play a role in street-level enforcement in other legal contexts, and elucidating policy implications. By incorporating inter-organizational processes of constructing legal meaning into studies of street-level regulatory enforcement, this dissertation provides a fresh approach to street-level enforcement, inter-organizational dynamics, and more broadly, the dynamics of administrative legitimacy.

This dissertation presents one of the first empirical studies of the implementation of the Equator Principles by some of the largest private financial institutions in the world. These banks created this regime of private global governance to standardize industry approaches to risk management of large-scale infrastructure projects. Particularly when constructed in weak regulatory environments, these projects historically have been criticized for their adverse impacts on local populations, including environmental degradation and forced resettlement. To prevent such "problem projects" from being financed, banks adopting the Equator Principles commit to imposing on their borrowers World Bank environmental and social risk management standards and procedures, and pledge to withhold or withdraw funding from any project found not to be compliant with these standards. Using the EPs as a case study, this dissertation explores different ways to evaluate the effectiveness of self-regulation. Overall, the study finds that a majority of the 24 surveyed institutions, which constitute a representative sample of the larger population of participating institutions along key criteria, made considerable organizational changes to implement the Principles. Though key stakeholders--a global network of NGOs--have been less than satisfied with the EPs, there is considerable evidence that they have made a substantial impact on the project finance industry.

The study also uses the example of the Equator Principles as a further empirical setting in which to analyze a long-standing debate across several fields: whether (and to what extent) isomorphic external pressures from institutional environments, the power of reputational concerns, and the quest for organizational legitimacy are sufficient forces to shape organizational behavior absent strong mechanisms of enforcement. Though the challenges of data gathering and measurability constrain the researcher's ability to draw strong conclusions with respect to causality, the study offers considerable evidence of the influence of external actors on bank behavior and the force of reputational concerns as a driver of "compliance."

The research project which produced this volume of essays grew out of the central issue addressed in Trading Up: Consumer and Environmental Regulation in a Global Economy by David Vogel, namely the impact of economic globalization on national regulatory policies. While popular opinion tends to assume that global economic competition produces a “race to the bottom,” virtually all scholars who have examined this issue challenge this claim. Vogel goes a step further, arguing for the existence of a “California effect,” e.g. a “race to the top” or toward stringency. This introductory essay reviews the extensive scholarly literature on this subject and then summarizes and analyzes the contributions of the ten essays in this volume to this debate as well as to the related question of the impact of globalization on regulatory convergence/divergence. On balance, these essays report both continued regulatory divergence as well as movement in the direction of more stringent standards.