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

Abstract

European countries have experienced massive structural transformations over the past twenty-five years with the privatization of stateowned 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.

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