Suchergebnisse

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

Over the last decade the regulatory evaluation of environmental and public health risks has been one of the most legally controversial areas of contemporary government activity. Much of that debate has been understood as a conflict between those promoting ''scientific'' approaches to risk evaluation and those promoting ''democratic'' approaches. This characterization of disputes has ignored the central roles of public administration and law in technological risk evaluation. This is problematic because, as shown in this book, legal disputes over risk evaluation are disputes over administrative

Over a decade ago I was involved in a group project that focused on developing a regulatory model concerning the implementation of the precautionary principle in the EU. The project involved a number of workshops and in those workshops I used to joke about the fact that while there were many different frameworks being produced to represent risk regulation, these diagrams basically fell into two different categories. In the first category there were those diagrams that characterised risk regulation as a linear process involving usually a scientific process of risk assessment and then political processes of risk management and risk communication. In the second category there were those diagrams that had lots of looping arrows going all over the place that represented the fact that risk regulation was an iterative process that constantly involved many scientific, socio-political and other inputs.Behind my joking was a sense of hope. The linear diagrams did have their minimalist appeal, but the messy diagrams captured much of the reality of this area of regulatory practice.

Climate change litigation is an obsessive preoccupation for many legal scholars. Three different "narratives" can be identified for why scholars find such litigation important to study: litigation is a response to institutional failure, legal reasoning holds authority, and litigation is a forum for the co‐production of facts and social orders. The nature and consequences of these narratives are considered in the context of the first U.S. Supreme Court "climate change" case—Massachusetts v. EPA (2007). This analysis has implications for both how scholars understand their expertise in this area, and how they should foster it.

This book, by two of the world's leading administrative law scholars, reimagines administrative law as the law of public administration by making its competence the focus of administrative law. Grounded in extensive interdisciplinary, historical, and doctrinal analysis, Fisher and Shapiro show why understanding both the capacity and authority of expert public administration is crucial to ensure the legitimacy and accountability of the administrative state. To address the current precarious state of administrative law, they support a new study of the administrative process by an Attorney Generals Committee on Administrative Procedure leading to a revised Administrative Procedure Act (APA). This book is a must-read for anyone interested in administrative law and its reform.