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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

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Delegation of Governmental Power to Private Parties: A Comparative Approach

ISBN13: 9780199298242
Published: October 2007
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £81.00

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Through a comparative analysis of England, the European Union, and the United States, this book considers legal responses to delegation of governmental power to private parties. Although private delegation has the potential to enhance the efficiency and effectiveness of governance, it should not be assumed to have this result. Private delegation creates risks to democracy, accountability, and human rights. Any legal controls must therefore respond to the challenge of enhancing the potential effectiveness of private delegation, while minimising the risks.

The legal responses of the three jurisdictions to private delegation are categorised in a two-fold and functional way: responses which impose controls on the delegator of governmental power, and responses which impose contols on the private delegate of governmental power. The controls imposed by different legal disciplines such as constitutional law, administrative law, regulatory law, and private law are assessed.

Three goals are pursued. First, the relationship between the different legal responses is. The challenge of private delegation is a complex one, which requires a multi-faceted response from a number of different legal disciplines. No one source of legal control is in itself adequate to respond to the challenge. Second, within the discussion of each individual legal control, appropriate responses to private delegation are analused. Third, Donnelly demonstrates that at present, the response of all three jurisdictions to private delegation, is inadequate albeit to differing degrees, is inadequate. A much greater awareness of the risks of private delegation and a greater sense of responsibility on the part of the judiciary are required if these legal systems are to respond appropriately to the challenge of delegation of governmental power to private parties.

Constitutional and Administrative Law
1. Introduction
Part I: Delegation in Context
2. The Jurisdictional Context of Private Delegation
3. The Benefits and Challenges of Private Delegation

Part II: Controls on Delegation
4. Constitutional Controls on Delegation
5. Legislative and Regulatory Controls on Delegation

Part III: Controls on Private Parties
6. Human Rights Controls on the Delegate
7. Administrative Law Controls on the Delegate
8. Private Law Controls on the Delegate

Part IV: Comparisons, Law, and Delegation
9. Conclusion