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Risk Regulation and Administrative Constitutionalism


ISBN13: 9781841130330
Published: July 2007
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £65.00
Paperback edition , ISBN13 9781849460880



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The regulation of environmental and public health risks is one of the most controversial areas of contemporary government activity. This book is a study of the public law dimension of these controversies and in particular the interrelationship between risk regulation, public law, and theories of legitimate administrative governance. Legal disputes over risk regulation standard setting have primarily been disputes over what role public law should play in constituting and limiting the power of administrative risk regulators.

This is even in those jurisdictions where regulatory regimes bear little resemblance to the administrative state. Such conflicts are due to a clash of different visions over how to make standard setting legally, socio-politically, and constitutionally legitimate and they can be best described as disputes over administrative constitutionalism. Two different models of administrative constitutionalism have dominated the legal discourse over risk regulation - the rational-instrumental and the deliberative constitutive.

The book discusses these in detail and examines the legal implications of them in four case studies taken from four very different legal cultures, the US, UK, EC and WTO. It is shown that administrative constitutionalism is an inescapable feature of risk regulation and this has implications for both legal scholars and law reformers alike.

Subjects:
Constitutional and Administrative Law
Contents:
Introduction
1: Risk Evaluation Through the Lens of Administrative Constitutionalism
I THE SCIENCE/DEMOCRACY DICHOTOMY IN REGULATING TECHNOLOGICAL RISK
A Technological Risks
B The Science/Democracy Dichotomy
C The Role of Law
D Problems with the Science/Democracy Dichotomy
II TECHNOLOGICAL RISK, PUBLIC ADMINISTRATION, AND ADMINISTRATIVE CONSTITUTIONALISM
A The Necessary Role of Public Administration
B The Contentious Role of Public Administration, Law and Administrative Constitutionalism
III TWO PARADIGMS OF ADMINISTRATIVE CONSTITUTIONALISM IN THE RISK REGULATION CONTEXT
A The Rational-Instrumental Paradigm
B The Deliberative Constitutive Paradigm
C The Paradigms Compared
IV ADMINISTRATIVE CONSTITUTIONALISM AS A FORM OF LEGAL CULTURE
V AN EXAMPLE: THE PRECAUTIONARY PRINCIPLE AND ADMINISTRATIVE CONSTITUTIONALISM
A The Precautionary Principle
B The Precautionary Principle and the DC and RI Paradigms
C The Precautionary Principle and the Burden of Proof
VI CONCLUSION
Part One: Administrative Constitutionalism in National Legal Cultures
Introduction to Administrative Constitutionalism in National Legal Cultures
I NATURE OF ADMINISTRATIVE CONSTITUTIONALISM
II THE ROLE OF LAW
III THE RELATIONSHIP BETWEEN LEGAL CONCEPTS AND THE REGULATORY REGIMES FOR TECHNOLOGICAL RISK REGULATION
IV CONCLUSION
2: BSE, Expertise and Administrative Constitutionalism: Examining the Role of the Southwood Working Party
I THINKING OF BSE IN TERMS OF ADMINISTRATIVE CONSTITUTIONALISM
II TECHNOLOGICAL RISK REGULATION AND ADMINISTRATIVE CONSTITUTIONALISM IN THE UK: A BRIEF HISTORY
III THE ADMINISTRATIVE CONSTITUTIONALISM CONTEXT OF THE BSE CRISIS
IV THE SOUTHWOODWORKING PARTY
V AFTER SOUTHWOOD
VI CONCLUSIONS
3: Hard Looks and Substantial Evidence: Scope of Review of US Risk Regulation Rulemaking in the 1970s
I SCOPE OF REVIEW AND ADMINISTRATIVE CONSTITUTIONALISM IN HISTORICAL PERSPECTIVE
II ADMINISTRATIVE CONSTITUTIONALISM AND RISK REGULATION REGIMES IN THE EARLY 1970S
III HARD LOOK REVIEW
IV SUBSTANTIAL EVIDENCE AND THE OCCUPATIONAL SAFETY AND HEALTH ACT
V SCOPE OF REVIEW UNDER THE RI PARADIGM
VI REFLECTIONS
VII CONCLUSION
4: The Precautionary Principle and Merits Review in Australia
I AUSTRALIAN ENVIRONMENTAL LAW AND THE DC PARADIGM OF ADMINISTRATIVE CONSTITUTIONALISM
II THE PRECAUTIONARY PRINCIPLE IN AUSTRALIAN ENVIRONMENTAL LAW
III GENERALIST TRIBUNALS, ENVIRONMENTAL COURTS, AND MERITS REVIEW
IV DC INTERPRETATIONS OF THE PRECAUTIONARY PRINCIPLE
V RI INTERPRETATIONS OF THE PRECAUTIONARY PRINCIPLE
VI THE SEARCH FOR A UNIFORM INTERPRETATION
VII CONCLUSIONS
Part Two: Administrative Constitutionalism and Risk Regulation Beyond the State
Introduction to Administrative Constitutionalism and Risk Regulation Beyond the State
I THE WTO AND EU: AN OVERVIEW
II THE ROLE OF LAW
III GOVERNANCE AND ADMINISTRATIVE CONSTITUTIONALISM
IV CONCLUSION
5: Risk Assessment, The World Trade Organisation Sanitary and Phytosanitary Agreement and Administrative Constitutionalism
I THE WTO SPS AGREEMENT
II THE SPS AGREEMENT THROUGH THE LENS OF ADMINISTRATIVE CONSTITUTIONALISM
III EC-HORMONES AND THE DEFINITION OF RISK ASSESSMENT
IV DEFINING RISK ASSESSMENT IN DISPUTES SINCE EC-HORMONES: THE INADVERTENT PURSUIT OF THE RI PARADIGM
V THE PROBLEM WITH THE WTO SPS JURISPRUDENCE ON ARTICLE 5.1
VI FUTURE LINES OF INQUIRY
VII CONCLUSION
6. The Precautionary Principle and Administrative Constitutionalism in the European Union: Asking Some Difficult Questions
I CONTEXTUALISING THE PRECAUTIONARY PRINCIPLE IN THE EUROPEAN UNION
II OVERLAPS, INTERRELATIONSHIPS AND ADMINISTRATIVE INTEGRATION
III THE CASE LAW BEFORE THE COMMISSION'S COMMUNICATION
IV THE COMMISSION'S COMMUNICATION ON THE PRECAUTIONARY PRINCIPLE
V CASE LAW AFTER THE COMMISSION'S COMMUNICATION
VI REFLECTIONS
VII CONCLUSION
Conclusions
Chapter Seven: Beyond the Science/Democracy Dichotomy
I A SUMMARY OF ANALYSIS
II SOME PRELIMINARY FINDINGS
III NEXT STEPS
IV CONCLUSION
Bibliography
Index