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Risk Regulation and Administrative Constitutionalism

By: Elizabeth C. Fisher
Media of Risk Regulation and Administrative Constitutionalism
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Published: 30-07-2007
Format: Hardback
Edition: 1st
Extent: 256
ISBN: 9781841130330
Imprint: Hart Publishing
Dimensions: 234 x 156 mm
RRP : £70.00
 

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Loren Epson

About Risk Regulation and Administrative Constitutionalism

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 constitutionalism in that they are disputes over what role law should play in constituting and limiting the power of administrative risk regulators. This is shown by five case studies taken from five different legal cultures: an analysis of the bifurcated role of the Southwood Working Party in the UK BSE crisis; the development of doctrines in relation to judicial review of risk evaluation in the US in the 1970s; the interpretation of the precautionary principle by environmental courts and generalist tribunals carrying out merits review in Australia; the interpretation of the WTO Sanitary and Phytosanitary Agreement as part of the WTO dispute settlement process; and the interpretation of the precautionary principle in the EU context. A strong argument is thus made for re-orienting the focus of scholarship in this area.

Table Of 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

Reviews

“...an impressive book that manages to combine a singularity of focus with an extraordinary breadth of research. It makes an important contribution to the literature on risk regulation, administrative law, and socio-legal studies generally...These are Elizabeth Fisher's ideas, claims and hypotheses; there is no hiding behind canon or behind superficially neutral 'we' statements. Fisher's Risk Regulation and Administrative Constitutionalism is a courageous and original monograph. It is the kind of work that will inspire scholars and reward readers for many years to come.” –  Veerle Heyvaert, Modern Law Review 72 (5)

“Fisher's...particularly significant contribution to these discussions is her shift away from the relatively well-considered debates on the use of scientific evidence in claims for liability or when drafting legislation to the coal face of public administration and (in her terminology) 'administrative constitutionalism'...Overall, Fisher's analysis is rarely prescriptive, preferring to describe what is happening in her chosen 'snapshots' of risk evaluation, offering an analytical lens for further analysis...her section on preliminary findings is tantalisingly short and, one suspects, an aspect of the book that may be further developed in future articles. These will no doubt be as thoughtful and insightful as the book itself, and well worth the wait.” –  Antonia Layard, Journal of Environmental Law

“The case studies are interesting in themselves. Fisher's treatments of the role of expertise in the British BSE inquiry and of the complexities of risk regulation through specialised courts in Australia are particularly illuminating...By moving away from the simple 'science versus democracy' dichotomy, Fisher clearly advances our understanding of risk regulation and administrative law. Her work opens the way to even more textured accounts of the relevant legal cultures.” –  Mark Tushnet, European Law Journal, Vol. 14, No. 5

“Anyone embarking on this type of research, whether empirical or normative, or on research involving the wider themes of institutional dynamics and legitimating discourses that shape regulation will find inspiration in the challenging tone and analytical richness of Risk Regulation and Administrative Constitutionalism.” –  Anne Meuwese, Journal of Law and Society, Vol. 35, No. 3

“In meticulous detail, Fisher maps the two theories onto the actors and the proceedings of these case studies.

The schema set out in this book are compelling, and serious readers will find themselves better-equipped to comprehend the problems and the potentials, the vagaries and the constants, of public administration.

” –  David Frankel, Journal of International Law and Politics, Volume 41, Number 3

“Her discussion reveals a considerable depth and breadth of thinking and understanding on the issues” –  Lynda M Warren, Environmental Law Review, Volume 11, Number 3

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