Risk Regulation and Administrative Constitutionalism

Description

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.

Liz Fisher is a Fellow and Tutor in Law at Corpus Christi College, Oxford, and a University Lecturer in Law.

...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 *