From Brussels with Love: The Transatlantic Travels of European Law and the Chemistry of Regulatory Attraction

Abstract

U.S. scholarship and U.S. courts have in recent years been gripped by the question of whether and in what circumstances it might be appropriate to rely on foreign, comparative, and international law. Along with a number of other scholars, this paper suggests that the intensive focus on that question, despite its undeniable scholarly and constitutional interest, has led to a tendency to overlook or ignore many of the crucial ways in which foreign law has entered and influenced U.S. law and policy. Using the example of the European Union’s Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), this paper examines the ways in which individual states and a wide range of private actors, including NGOs, have drawn upon and used EU law in reforming the U.S. chemicals regime. The paper tells a story of law’s migration, highlighting the impact that foreign law can have in the United States and identifying the routes it travels to find its way in. It argues that this regulatory influence is not one way and that the EU regime is structured in such a way that reciprocal learning from the United States is also highly likely.