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.

The Constitution of Risk is the first book to combine constitutional theory with the theory of risk regulation. The book argues that constitutional rulemaking is best understood as a means of managing political risks. Constitutional law structures and regulates the risks that arise in and from political life, such as an executive coup or military putsch, political abuse of ideological or ethnic minorities, or corrupt self-dealing by officials. The book claims that the best way to manage political risks is an approach it calls "optimizing constitutionalism" - in contrast to the worst-case thinking that underpins "precautionary constitutionalism," a mainstay of liberal constitutional theory. Drawing on a broad range of disciplines such as decision theory, game theory, welfare economics, political science, and psychology, this book advocates constitutional rulemaking undertaken in a spirit of welfare maximization, and offers a corrective to the pervasive and frequently irrational attitude of distrust of official power that is so prominent in American constitutional history and discourse.

This book reimagines administrative law as the law of public administration by making its competence the focus of administrative law.

Rejecting current arguments that international law should be 'constitutionalized', this book advances an alternative, pluralist vision of postnational legal orders. It analyses the promise and problems of pluralism in theory and in current practice - focusing on the European human rights regime, the European Union, and global governance in the UN.

A growing body of EU law and regulation is preoccupied with the protection of EU citizens from health and environmental risks. Which chemicals are safe and should be allowed on the market? How should the EU respond to public health emergencies, such as Ebola and other infectious diseases? Regulatory responses to these questions confront deep uncertainty, limited knowledge and societal contestation. In a time where the use of scientific expertise in EU policy-making is particularly contested, this book offers a timely contribution to both the academic and policy debate on the role of specialised expertise in EU public decision-making on risk and technology as well as on its intertwinement with executive power. It draws on insights from law, governance, political sciences, and science and technology studies, bringing together leading scholars in this field. Contributions are drawn together by a shared theoretical perspective, namely by their use of co-production as an analytical lens to study the intricate interplay between techno-scientific expertise and EU executive power. By so doing, this collection produces highly original insights into the development of the EU administrative state, as well as into the role of regulatory science in its construction. This book will be useful to scholars, practitioners, and policy-makers working on risk regulation and the role of expertise in public decision-making.

This challenging book takes a broad and thought-provoking look at the precautionary principle and its implementation, or potential implementation, in a number of fields. In particular, the essays within the book explore the challenges faced by public decision-making processes when applying the precautionary principle, including its role in risk management and risk assessment. Frameworks for improved decision making are considered, followed by a detailed analysis of prospective applications of the precautionary principle in a number of emerging fields including: nanotechnology, climate change.

This publication presents recent OECD papers on risk and regulatory policy. They offer measures for developing, or improving, coherent risk governance policies.

The regulation of environmental and public health risks is a controversial area of government activity. This book studies the public law dimension of these controversies, particularly the interrelationship between risk regulation, public law and theories of legitimate administrative governance.

Winner of the Scribes Book Award “As brilliantly imaginative as it is urgently timely.” —Richard H. Fallon, Jr., Harvard Law School “At no time more than the present, a defense of expertise-based governance and administration is sorely needed, and this book provides it with gusto.” —Frederick Schauer, author of The Proof A highly original framework for restoring confidence in a government bureaucracy increasingly derided as “the deep state.” Is the modern administrative state illegitimate? Unconstitutional? Unaccountable? Dangerous? America has long been divided over these questions, but the debate has recently taken on more urgency and spilled into the streets. Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed so long as public officials are constrained by morality and guided by stable rules. Officials should make clear rules, ensure transparency, and never abuse retroactivity, so that current guidelines are not under constant threat of change. They should make rules that are understandable and avoid issuing contradictory ones. These principles may seem simple, but they have a great deal of power. Already, they limit the activities of administrative agencies every day. In more robust form, they could address some of the concerns of critics who decry the “deep state” and yearn for its downfall. “Has something to offer both critics and supporters...a valuable contribution to the ongoing debate over the constitutionality of the modern state.” —Review of Politics “The authors freely admit that the administrative state is not perfect. But, they contend, it is far better than its critics allow.” —Wall Street Journal