European Principles Governing National Administrative Proceedings

It is critical that the process of developing general principles of Community administrative law continue, notwithstanding the marked diversity of supranational administrative proceedings. Because Community law has traditionally been focused on activities relevant to the common market, an asymmetry between the regulation of market-related administrative proceedings and other types of administrative proceedings has developed

Costs of Reducing Nutrient Losses in Denmark - Analyses of Different Regulation Systems and Cost Effective Measures

The economic calculations carried out prior to the Plan for the Aquatic Environment III included a comparison of regulation systems aimed at reducing nitrogen leaching, analyses of measures for reducing phosphorus losses and estimation of administrative costs. The conclusions were that taxation of the N-surplus introduced at the sector level was the most cost effective regulation when compared with administrative regulation and set a side. For phosphorus a balance between incoming and outgoing phosphorus is very costly as this requires that much slurry is transported from the western to the eastern part of Denmark. The final plan for the Aquatic Environment III from 2004 included a 13% reduction of N-leaching until 2015 based on cost effective administrative measures like wetlands and catch crops. Also a tax on mineral phosphorus in feedstuffs was included in order to half the phosphorus surplus. The measures in the Plan will have to be supplemented by more measures to meet the targets in the EU's Water Framework Directive.cost-effectiveness, cost of reducing nitrogen leaching, phosphorus, administrative costs, Agricultural and Food Policy, Q51, Q52, Q53,

Bargaining in the Shadow of Administrative Procedure: The Public Interest in Rulemaking Settlement

This article addresses problems associated with settlement of appeals of legislative rules adopted by administrative agencies. Settlement is a common and important tool for avoiding litigation, but it also raises potential problems for administrative law. In particular, to the extent that an appellate litigation posture poses a principal/agent gap, an agency's incentives to settle may lead it to abandon its public interest goals, otherwise protected by statutory mandates as well as administrative procedures. The problem is most salient when an agency agrees to a substantive policy position in a settlement, committing the agency to later implement a policy course. To the extent an agency uses the same administrative procedure to implement a settlement that was used in adopting the regulation that is the subject of an appeal, the public interest may be preserved, but agencies have many ways of avoiding administrative procedure, or affording less procedure than was afforded in the initial adoption of a rule, in implementing settlement concessions. This article discusses these issues in three parts. In part I, settlement is contrasted to negotiated regulation. Settlement, it is argued, raises a more significant principal/agent gap than other consensus approach to regulation, such as negotiated regulation. Part II addresses settlement against the backdrop of presidential transitions, during in which policy shifts are common. In the context of presidential transitions, settlement can be used by an old administration to commit a new President to a policy course, or can be used by a new administration to undo the policy decisions of an old President. While policy shifts are expected during presidential transitions, such shifts have serious consequences for administrative procedure if the new policy is implemented with less procedure than the old, abandoned policy. Part III recommends some ways of narrowing the principal/agent gap in rulemaking settlement. In particular, broad participation in settlement negotiations, as well in judicial proceedings approving settlements, is endorsed. In addition, hard look review of the merits of a settlement ex ante -- at the time of the settlement's initial approval -- is advocated as a way of promoting accountability

Implementing Public Health Regulations in Developing Countries: Lessons from the OECD Countries

The enforcement of public health standards is a common problem in many developing countries. Public health agencies lack sufficient resources and, too often, enforcement mechanisms rely on slow and erratic judicial systems. These limitations can make traditional public health regulations difficult to implement. In this article, we examine innovative approaches to the implementation of public health regulations that have emerged in recent years within OECD countries. These approaches aim to improve compliance with health standards, while reducing dependence on both the legal system and the administrative resources of public health agencies. This article begins by discussing some traditional forms of public health regulations; these regulations include administrative searches and inspections as well as licensing measures. Within these traditional forms of public health regulation, there are several ways of improving compliance without substantially increasing administrative costs. These measures include public disclosure and several types of sanctions, which may escalate in severity as an actor continues to flout the public health regulation. In addition to such traditional measures, we discuss more creative approaches to reducing dependence on the judiciary and reducing administrative costs. Dependence on the judiciary can be reduced through increased reliance on alternative dispute resolution methods, such as mediation and arbitrations, as well as through the use of a public health Ombudsman. Administrative costs could also potentially be reduced through the creative use of public-private cooperation measures, such as negotiated rulemaking and self-regulating codes of conduct. Developing countries may find some useful lessons in the innovative approaches described; however, these approaches will likely need to be adapted to fit each country’s particular institutional setting

The concept of ‘law’ in global administrative law : a reply to Benedict Kingsbury

Departing from the Westphalian tradition, global administrative law is seen as arising from the pragmatic needs of transboundary regulation underpinned by a normative aspiration to rule of law beyond national boundaries. Unhinged from state consent, however, it faces a twofold challenge: legality and legitimacy. The former centers on the distinction between law and non-law; the latter is concerned with the legitimacy of global administrative law. Benedict Kingsbury’s The Concept of ‘Law’ in Global Administrative Law attempts to answer this twofold challenge by centering the new paradigm of international law, as epitomized by global administrative law, on the notion of publicness. First, he pins its solution on the substantive concept of publicness. Second, he portrays global administrative law as an inter-public law, governing the relationship among regulatory regimes in accordance with the value of publicness. This Reply argues that Kingsbury’s publicness-centered conception of international law does not resolve the challenges facing global administrative law. Rather, his version of global administrative law does not so much correspond to an inter-public law as points to a post-public conception of legitimacy, reflecting the trend of addressing the issue of fragmentation by tacitly adopting the strategy of privatization in global administrative law scholarship

Adaptive Regulation in the Amoral Bazaar

Twelfth Oliver Schreiner Memorial Lecture,delivered on 20 October 2010 at the School of Law, University of the Witwatersrand, Johannesburg, South Africa. Many gradual changes in science, law and society are crystallizing to shape a significant transformation in administrative law. The doctrinal framework within which Justice Schreiner himself attempted to modernize how law should regulate government and private economic activity seems from our vantage point to be quite antiquated. In explaining why, my examples will come from the world of financial services, but they could easily be found anywhere in the area of law and regulation. First I will outline the basic premises of prevailing doctrine and its growing shortcomings. Then I will describe developments in our understanding of the social ecologies through which law and regulation is transfused. I will consider some of the implications for the way in which we need to think about future regulation in order to be more effective in this complex world. We are moving from a framework of directive regulation to one that has to become much more adaptive. While my talk will focus on understanding markets as evolutionary social ecologies, and the consequences this has for administrative law and regulation, it is also important that these amoral bazaars be grounded on a foundation of moral aspiraton and integrity. I will therefore conclude with a reminder that we ignore at our peril the urgent responsibility of redeveloping a moral framework within which markets should operate