Risk Regulation and Administrative Constitutionalism

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

• 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

...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), 2009 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 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, 2009