Francesca Bignami

Cooperative Legalism and the Non-Americanization of European Regulatory Styles: The Case of Data Privacy

European countries have experienced massive structural transformations over the past twenty-five years with the privatization of state-owned industries, the liberalization of markets, and the rise of the European Union. According to one prominent line of analysis, these changes have led to the Americanization of European regulatory styles: previously informal and cooperative modes of regulation are becoming adversarial and litigation-driven, as in the American system. This article explores the Americanization hypothesis with a structured comparison of data privacy regulation in four countries (France, Britain, Germany, and Italy) and a review of three other policy areas. It finds that European regulatory systems are indeed converging, but not on American-style litigation. Rather, they are moving towards a common administrative model of deterrence-oriented regulatory enforcement and industry self-regulation -- called here “cooperative legalism.” The explanation for this emerging regulatory strategy is to be found in government responses to market liberalization, as well as in the pressure created by the governance process of the European Union.

Theories of Civil Society and Global Administrative Law: The Case of the World Bank and International Development

For over two decades, the concept of civil society has informed institutional design in the international realm. Empowering civil society has served as a key rhetorical and policy response to the criticism that the social and economic processes of globalization and the international organizations that have emerged to govern the global realm are illegitimate, elite driven, and anti-democratic. This chapter, which appears in the Elgar Research Handbook on Global Administrative Law, unpacks the concept of civil society with the aim of understanding the institutional reforms that have been undertaken in one important area of global governance — the international development law of the World Bank and other multilateral development banks. The chapter identifies five lines of theoretical argument in favor of civil society: liberal, social capital, multicultural, cosmopolitan, and effective governance. It then canvasses the evolving law of the World Bank, with reference where relevant to other multilateral development banks. The chapter demonstrates that the reforms undertaken in the 1990s — analytical and participation requirements in project planning and funding for civil society groups — were motivated by the social capital and multicultural theories. By contrast, the reforms of the 2000s — transparency and consultation — were driven by the liberal and effective governance theories. Surprisingly, cosmopolitan theories that posit transnational associations as representatives of a global people are largely absent from the law of the World Bank.

From Expert Administration to Accountability Network: A New Paradigm for Comparative Administrative Law

Abstract: Notwithstanding recent scholarly interest in comparative administrative law, the categories and concepts that structure comparisons and that facilitate communication among different legal systems have not changed much since the late 1800s. They are rooted in confidence in expert bureaucracy to accomplish public purposes and are twofold-administrative organization and judicial review. This outdated view of administrative law has limited the ability of the field to engage with contemporary debates on administrative governance, which instead are deeply skeptical of public administration and are premised on achieving the public good through a plural accountability network of public and private actors. This paper seeks to correct the anachronism by reframing administrative law as a set of rules designed to embed public administration and civil servants in their democratic societies: accountability to elected officials, organized interests, the courts, and the general public. Based on this new paradigm, the paper compares American and European administrative law, with reference to other parts of the world too. It concludes with a number of suggestions for how comparative law can speak to current debates on reforming administrative governance.

Introduction. A New Field: Comparative Law and Regulation

The contemporary regulatory process is global. Markets and the problems they generate — consumer privacy, chemicals safety, and many others — cross borders and multiple national and international jurisdictions are called into action, sometimes in concert but just as often in competition. The new field of comparative law and regulation is devoted to understanding this global regulatory process. This introductory essay lays the groundwork for the volume and future research in the field by defining the object of study and by identifying three important avenues of theoretical inquiry. Comparative law and regulation covers the law of the regulatory function — legislative and administrative rulemaking, oversight, enforcement, and judicial review — in both domestic and international jurisdictions, and involving both public and private actors. Theoretically, the field tackles three critical features of the global regulatory process — jurisdictional variation, convergence (and divergence) over time, and legal prescription based on comparison. Jurisdictional variation is best captured by classifications based on paradigms of public law and models of legitimate private involvement in public regulation. The question of whether and how convergence occurs should be studied using causal theories of legal transplants and diffusion. And legal prescription based on comparison, a favorite rhetorical device in the global regulatory process, should be evaluated based on a normatively explicit and empirically sensitive functional method of comparative law research. These conceptual and theoretical tools apply equally to domestic and international jurisdictions.

Social and Economic Rights as Fundamental Rights

In 2014, the constitutional law topic for the International Congress of Comparative Law was “Social and Economic Rights as Fundamental Rights.” This national report on the American system, which responds to the extensive questionnaire circulated to the national reporters, analyzes the protections afforded for the right to social security at the federal level and the right to education at the state level. We demonstrate that unlike a number of other countries, the right to social security is not afforded significant protection: the text of the U.S. Constitution does not expressly contain such a right; the Supreme Court has only recognized a right to non-discrimination against the indigent with respect to certain “fundamental rights” and a right to due process before the termination of government benefits; and constitutional and sub-constitutional norms of legitimate expectations, vested rights, and non-retroactivity do not prevent the state from immediately ending benefits under government programs. By contrast, at the state level, the right to education is recognized in all state constitutions and has given rise to an extensive jurisprudence on issues such as unequal funding of school districts, education for juveniles in detention and the homeless, and education for the children of undocumented workers.

Comparative Administrative Law

This chapter provides an overview of comparative administrative law, with particular attention to European jurisdictions and the United States. The underlying conceptual similarity that serves to organize the comparative analysis is the purpose, common to these systems, of rendering public administration both capable and expert, on the one hand, and accountable to a variety of liberal democratic actors, on the other hand. The chapter first discusses what historically was the principal legal tool for achieving neutrality and expertise — the legal guarantees of civil service employment — together with national variations in the professionalization of administration. It then turns to three important types of accountability and the different institutions, rules, and procedures used to achieve these forms of accountability in the legal systems under consideration: the contestation of administrative action before the courts; the involvement of organized interests in administrative policymaking; and informal accountability to the general public through parliamentary ombudsmen and transparency guarantees.

Regulation and the Courts: Judicial Review in Comparative Perspective

After a historical survey of the literature, this chapter puts forward a new analytical scheme to capture variation in comparative judicial review. The earliest, and still relevant, classification developed in the scholarly literature turns on the difference between judicial review of administrative action by the ordinary courts in the English common law and by a special body (Conseil d’Etat) connected to the executive branch in the French droit administratif. This is followed chronologically by the contrast that has been drawn by Robert Kagan and public-choice scholars between the litigious and formal American system of law and public policy and the informal and discretionary European model. The chapter then proposes a new classification based on two competing theories that are deployed by courts: in European jurisdictions, judicial review to safeguard fundamental economic and social rights (the fundamental rights model) and, in the United States, judicial review to safeguard procedural democracy (the ballot-box democracy model). In Europe, the courts employ doctrines such as proportionality and equality to protect economic and social rights in government policy-making; in the United States, the courts impose extensive procedural requirements on public administration to promote democracy when the bureaucracy undertakes policy-making. After considering the historical reasons for these two models of judicial review, the chapter argues that it will be important to investigate them empirically in light of their potential for diffusion to domestic and international jurisdictions.

Individual Rights and Transnational Networks

Transnational regulatory networks have become increasingly powerful over the past decades. For public law scholars, one of the most pressing questions raised by transnational networks is whether they respect the constitutional and administrative principles that have been developed within the context of the nation state. Although the focus of recent scholarship has been the democratic accountability of networks tasked with agenda-setting and rule-making powers, certain networks are also responsible for individualized decision-making and carry the risk of undermining liberal rights. Examples include the UN Sanctions Committee, Europol, and the administration of EU customs and agricultural policy. This contribution identifies some of the challenges of protecting rights in the radically fragmented universe of network governance and offers reflections on how these challenges might be met based on the longstanding experience of the European Court of Justice.