From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure

by: Máximo Langer

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Acting Professor of Law, UCLA School of Law. S.J.D. Candidate, Harvard Law School, 2004; LL.B., University of Buenos Aires Law School, 1995.

Volume 45, Number 1 (Winter 2004)

Since the end of the Second World War, and particularly following the end of the Cold War, the American legal system arguably has become the most influential legal system in the world. American influences on the legal systems of other nations have ranged from general influences on jurisprudential approaches to law (e.g., legal realism and pragmatism, law and economics, rights discourse, etc.) to influences on specific legal areas (e.g., constitutional law, tax law, securities law, corporate law, patent law, international commercial arbitration, etc.); from legal education (e.g., a credits system for particular courses, or certain post-graduate studies leading to an LL.M. degree) and the structure of the legal profession (e.g., large law firms or the valorization of private practice) to the reform of the judiciary; from specific legal doctrines or legal tools (e.g., constitutional exclusionary rules, the doctrine of “actual malice” in the freedom of speech and of the press, class actions, etc.) to institutional arrangements such as the separation of powers and judicial review. These undeniable American influences on other legal systems have led a number of commentators, both in the United States and abroad, to announce that a substantial number of legal systems, both at the national and the international levels, may gradually come to resemble or mimic the American legal system and thus become

In this Article, I caution against the former thesis of Americanization (the “strong” thesis) through an examination of the introduction of American-style plea bargaining in four civil law countries—Germany, Italy, Argentina, and France. The influence of American plea bargaining in all four of these jurisdictions is undeniable. Despite this influence, however, the importation of plea bargaining into these jurisdictions is not likely to reproduce an American model of criminal procedure. Each of these jurisdictions has adopted a form of plea bargaining that contains differences—even substantial differences—from the American model, either because of decisions by the legal reformers in each jurisdiction or because of structural differences between American criminal procedure and the criminal procedures of the civil law tradition. Consequently, some civil law versions of plea bargaining have not resembled the American practice since their inception. In addition, the structural differences between the American adversarial conception of criminal procedure and the continental European and Latin American inquisitorial conception of criminal procedure are so deep that individual reforms inspired by American models are unlikely to push these inquisitorial criminal procedures in the direction of the American adversarial system. Finally, in each of these civil law jurisdictions, some legal actors have distrusted or resisted the adoption of plea bargaining and other consensual mechanisms, either because reforms have threatened their traditional powers within the inquisitorial criminal process or because of their differing legal culture. This distrust and resistance has also played a role in neutralizing the potential for Americanization inherent in some of these criminal procedure reforms.

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