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Brian H. Bix

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Brian H. Bix

This insightful research review provides analysis of the most important contemporary work by experts in the economic analysis of legal reasoning and interpretation. It explores a wide range of topics in the field, from constitutional to statutory interpretation, precedent and the interpretation of contracts. The articles discussed raise key questions concerning the optimal construction of institutions, the best approach to judicial decision-making, and the best strategies for statutory and contract drafting. This fascinating review will be valuable to academics interested in legal reasoning, economic analysis and legal philosophy.
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Brian H. Bix

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Pauline Westerman

Chapter 2 analyses the threefold structure of the norms that are developed if regulation is outsourced. The characteristic format is discernible in the framework directive: it consists of an aspirational norm, indicating the goal that should be achieved, an implementation norm requiring the norm-addressee to take measures or to draft rules in order to achieve that goal and an accountability norm, demanding regular reports on the progress made. For a large part this threefold structure is reproduced at each level of the outsourcing chain. At each (lower) level of norm-addressees, goals are formulated, albeit in a more concrete form, accompanied by performance indicators which specify the targets to be reached. At each level, implementation and accountability are also concretised and specified. The result is a great number of rules which mainly prescribe the state of affairs that should be reached, and which leave underdetermined how and by whom this result should be obtained. Furthermore, the typical structure of norms invites to a regime of risk liability and effectively reverses the burden of proof.

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Pauline Westerman

Chapter 8 examines the relation between outsourced law and the Rule of Law. The latter is taken in the most minimal sense of the word, as being guided by rules. It is argued that the idea of a rule as both general in scope and constant in time is no longer cherished as an ideal. Instead, differentiated and flexible forms of regulation are called for which more adequately respond to specific needs and circumstances. However, this does not imply that the ideal of the Rule of Law in the broad sense of the word, as encompassing human rights, is abandoned. Instead we see that such rights are often reformulated as ends to be pursued which then form the starting-point – as aspirational norms – for outsourced legislation and regulation. Finally, attention is paid to the particular way in which the Rule of Law has turned into an export-product, a goal in itself the realisation of which is outsourced to the governments of other – fragile – countries.

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Edited by Gareth Davies and Matej Avbelj

The Research Handbook on Legal Pluralism and EU Law explores the diversity of phenomenon of overlapping legal systems within the European Union, the nature of their interactions, and how they deal with the difficult question of the legal hierarchy between them. The contributors reflect on the history, sociology and legal scholarship on constitutional and legal pluralism, and develop this further in the light of the challenges currently facing the EU.
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Outsourcing the Law

A Philosophical Perspective on Regulation

Pauline Westerman

Not only can services such as cleaning and catering be outsourced, but also governmental tasks such as making, applying and enforcing the law. Outsourcing the law is usually recommended for its cost-efficiency, flexibility, higher rates of compliance and its promise of deregulation. However, lawmaking is not the same as cleaning and rules are more than just tools to achieve aims. In this timely book, Pauline Westerman analyses this outsourcing from a philosophical perspective.
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Pauline Westerman

Chapter 5 examines the claim that outsourcing legislation would contribute to enhanced democratic control. Two types of Principal-Agent relationships are contrasted: the relation between outsourcer and outsourcee and the relation between electorate and representative. On the basis of criteria borrowed from exchange-theory, it is argued that the distribution of power tends to be more advantageous for the outsourcer than for the electorate. Since in an outsourcing regime Agents tend to take the role of Principal, thus creating an additional intermediate layer, the possibilities for democratic control are further reduced. Furthermore, those who are vulnerable to malperformance by the Agent may not be (fully) represented by the Principal, who does not directly suffer the consequences of such malperformance itself.

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Pauline Westerman

Chapter 6 focuses on the effects of outsourced law on judicial interpretation and decision-making. It is argued that since the rules directly prescribe (abstract or concrete) aims, there is little room for judicial construction of underlying justificatory aims. Moreover, as is illustrated by a couple of cases, the room for manoeuvre for the judiciary tends to be reduced in the face of the many new rule-making bodies that are given discretionary powers on the basis of their specific expertise. Parties who are directly affected by malperformance of Principals or Agents are only involved as ‘third parties’. The chapter concludes with some remarks on the precarious position of the judiciary in relation to the many competing law-making and law-applying bodies that are created.