Whose Precaution after all? A Comment on the Comparison and Evolution of Risk Regulatory Systems

Abstract

A century ago, Oscar Wilde spun the story of the Canterville Ghost, who haunts a stately British manor and terrifies its European denizens, rattling chains at night and leaving bloodstains on the carpet. But the Otis family arrives from America and buys Canterville Chase, undaunted by the ghost. The ghost does his best to frighten the Otises, but they nonchalantly barrage the ghost with American technology, commercialism, and fearlessness. Unable to scare the Americans, the European ghost ultimately capitulates and falls on the mercy of the Otis daughter, who guides his guilty soul to a final resting place where his haunting days can end. How far has comparative law progressed since Wilde's day? Like Wilde's satire, modern comparisons of risk regulation in the United States and Europe are often cast in stereotypes. They depict Europeans as risk-averse, afraid of the unknown, afraid of new technologies and of global markets, jumping to adopt precautionary regulations against the most remote and speculative risks. Meanwhile Americans are seen as risk-indifferent or even risk-preferring, blustering blithely past risks, confident that new technology and the power of (American) markets will solve every problem and that precaution is a waste of time and a hindrance to progress. As Herbert Bernstein would have told us, these are stereotypes, fit for an Oscar Wilde comedy, not for serious analyses of comparative law. In this article, I echo Herbert's admonition to those who would paint stark contrasts between American and European legal systems based only on a few data points. I argue in this article that despite some divisive rhetoric of late, U.S. and European systems of risk regulation are not divergent in the simple way in which they are claimed to be. Part I documents the claim of divergence and greater European precaution. Part II argues that, instead, U.S. and European risk regulatory systems diverge in some ways, converge in others, and display a complex pattern of interaction. Both the United States and Europe have quite active environmental regulatory systems; the United States has hardly ceased regulating. Both the United States and Europe are often highly precautionary - and on several prominent examples, including particulate air pollution, mad cow disease in blood, youth violence, and terrorism, it is the United States that is acting in the more precautionary manner. The United States and Europe do not diverge as much as is claimed on the general use of precaution in regulation, but they often do diverge on the particular question of which risks to worry about and regulate most. This particularized divergence gives rise to visible conflicts. Part III considers the methods and challenges of comparative law and argues that the broader reality in transatlantic risk regulation is a process of hybridization, in which both systems borrow legal concepts from each other in a complex and continuous mutual evolution. Part IV offers concluding thoughts.