Risk Regulation and Administrative Constitutionalism

Description

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.

Elizabeth Fisher is a Reader in Environmental Law at the University of Oxford and Tutor in Law at Corpus Christi College, Oxford.

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 August 2008 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, September 2008 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, 2008 ...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...resolutely written in a direct and personal form...there is no hiding behind canon or behind superficially neutral 'we' statements...Risk Regulation and Administrative Constitutionalism is a courageous and original monograph...the kind of work that will inspire scholars and reward readers for many years to come. Veerle Heyvaert Modern Law Review