Legisprudence Volume 6
· Issue 3 2012
We are very pleased to let you know that the 3rd issue of the 2012 volume of Legisprudence has just been published. This is a special issue on
the role of courts as regulatory watchdogs and the contents
are shown below. To order or renew your subscription please click
here and to access this issue online please click
here.
Change of Title in 2013
We would like to inform you that in 2013 the title for Legisprudence has changed to Theory and Practice of Legislation. The new title will appear on the first volume of 2013 and it will
commence with Volume 1. Issue 1.
Contents
Special Issue: Courts as Regulatory Watchdogs
Edited by P.Popelier, W. Vandenbruwaene and D.
Keyaerts
Editorial: Preliminary Comments on the Role of
Courts as Regulatory Watchdogs
Patricia Popelier
This article is an introduction to the special
issue on the role of courts as regulatory watchdogs. It offers an oversight of process
review and the use of regulatory tools in administrative and constitutional
adjudication. In discussing the most common objections against attributing to
courts a role as regulatory watchdog, this article touches upon several aspects
related to this topic and introduces the contributions in this issue.
Semiprocedural Judicial Review
Ittai Bar-Siman-Tov
This article explores a novel cross-national phenomenon: the emergence
of a new judicial review model that merges procedural judicial review with
substantive judicial review.
Judicial Review of Regulatory Instruments: The
Least Imperfect Alternative?
Elaine Mak
In this article, the judicial review of regulatory processes is
investigated from the perspective of institutional choice, which concerns the
optimal institutional allocation of functions in a society.
Multi-Tiered Political Questions: The ECJ’s Mandate
in Enforcing Subsidiarity
Werner Vandenbruwaene
This article aims at clarifying the practice of judicial review of
subsidiarity, which is widely held to be either injusticiable, or only to a
very low extent. These objections contra subsidiarity review will be framed
under the political question doctrine, and addressed in order to ameliorate the
legal enforcement of subsidiarity.
The Race to Rationality Review and the Score of the
German Federal Constitutional Court
Klaus Meßerschmidt
Judicial review is composed of a triangle of substantive, procedural,
and impact review which often overlap and culminate in the concept of
rationality review. The dichotomy of substantivism and proceduralism is
modified in German Constitutional Law for two reasons: Firstly, because the
German Basic Law asks for a minimum procedural review, and secondly, because
the principle of proportionality often requires an assessment of facts and a
prognosis, thus establishing an impact review which sometimes overlaps with a
procedural review. However, the quest for rational decision making and due
deliberation does not prevail over substantive review.
The Judicial Review of Ex Ante Impact
Assessment in France: An Attempt to Fuse the Principles of Legal Certainty and
Institutional Balance
J.-P. Duprat
Recent reforms have inaugurated a new and important role for both the Conseil
Constitutionnel and the Conseil d’Etat with regards to the impact
assessment for legislative acts. As part of a wider ranging reform of
parliamentary procedure, both the advisory capacity of the Conseil d’Etat and
the judicial review of legislative acts by the Conseil Constitutionnel underscore
the importance of impact assessment in order to enhance the degree of evidence
based lawmaking. An original feature lies in the assistance of the supreme
courts to the government to discipline the Ministries and the Administration.
As a result, organization and process were modernized, with the additional
perspective for the Chambers of Parliament of an improved institutional balance
vis-à-vis the Executive.
Better Judicial Review? EU Courts and the Smart
Regulation Agenda in Implementing Chemicals Regulation
Emilia Korkea-aho
This article argues that implementation of EU law should be analysed and
studied as part of EU BR policies. In particular this is so after adoption of
the Commission’s smart regulation initiative, which makes a conscious effort to
include the whole policy-making chain as its concept of better regulation. In
this article I will shift attention away from the preparatory stages to the
later stages of policy-making and analyse implementation projects of Chemicals
Regulation REACH as a new manifestation of EU smart BR policies.
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