07 April 2013

JOURNAL: Legisprudence


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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