Understanding the Global Regulatory Process
Research Handbooks in Comparative Law series
Edited by Francesca Bignami and David Zaring
Chapter 1: The historical origins of American regulatory exceptionalism
Anyone who was trained to be a professional historian since the 1960s has received a stern lecture on the perils of “American exceptionalism”—the idea that something about the political and economic development of the United States rendered it unique in the history of the nation-state (Kammen,  1997). We were taught that the idea, once at the very center of the discipline’s methodology, smacked of uncritical jingoism. It was not an analytic framework for studying the United States, but an almost mystical belief not only that America was different from other countries, but that it was better: uniquely blessed with liberty, equality, and democracy; particularly generative of innovative, pragmatic capitalism; endowed with a moral purity unsullied by decadent European autocracies. It was thus a bit odd for me to indulge in the exceptionalist narrative that is suggested by the task of writing about the historical foundations of the American regulatory state for a volume on comparative regulation. My goal had to be a different type of exceptionalism. One rooted not in American civic religion but instead in a more basic, and uncontroversial, law and society truism: the legal systems that spring from different societies will be different. The corollary to this point is simply that the differences between the American system and other jurisdictions may have their roots in the divergent historical narratives. Historical contingency generates different state structures. America is not “exceptional” in the way every parent believes their children to be.