Documents Wiener, Jonathan B. 3 results

"The 'Precautionary Principle' has sparked the central controversy over European and U.S. risk regulation. The Reality of Precaution is the most comprehensive study to go beyond precaution as an abstract principle and test its reality in practice. This groundbreaking resource combines detailed case studies of a wide array of risks to health, safety, environment and security; a broad quantitative analysis; and cross-cutting chapters on politics, law, and perceptions. The authors rebut the rhetoric of conflicting European and American approaches to risk, and show that the reality has been the selective application of precaution to particular risks on both sides of the Atlantic, as well as a constructive exchange of policy ideas toward 'better regulation.' The book offers a new view of precaution, regulatory reform, comparative analysis, and transatlantic relations."

"A century ago, Oscar Wilde spun the story of the Canterville Ghost, who haunts a stately British manor and terrifies its European denizens, rattling chains at night and leaving bloodstains on the carpet. But the Otis family arrives from America and buys Canterville Chase, undaunted by the ghost. The ghost does his best to frighten the Otises, but they nonchalantly barrage the ghost with American technology, commercialism, and fearlessness. Unable to scare the Americans, the European ghost ultimately capitulates and falls on the mercy of the Otis daughter, who guides his guilty soul to a final resting place where his haunting days can end.

How far has comparative law progressed since Wilde's day? Like Wilde's satire, modern comparisons of risk regulation in the United States and Europe are often cast in stereotypes. They depict Europeans as risk-averse, afraid of the unknown, afraid of new technologies and of global markets, jumping to adopt precautionary regulations against the most remote and speculative risks. Meanwhile Americans are seen as risk-indifferent or even risk-preferring, blustering blithely past risks, confident that new technology and the power of (American) markets will solve every problem and that precaution is a waste of time and a hindrance to progress.

As Herbert Bernstein would have told us, these are stereotypes, fit for an Oscar Wilde comedy, not for serious analyses of comparative law. In this article, I echo Herbert's admonition to those who would paint stark contrasts between American and European legal systems based only on a few data points. I argue in this article that despite some divisive rhetoric of late, U.S. and European systems of risk regulation are not divergent in the simple way in which they are claimed to be. Part I documents the claim of divergence and greater European precaution. Part II argues that, instead, U.S. and European risk regulatory systems diverge in some ways, converge in others, and display a complex pattern of interaction. Both the United States and Europe have quite active environmental regulatory systems; the United States has hardly ceased regulating. Both the United States and Europe are often highly precautionary - and on several prominent examples, including particulate air pollution, mad cow disease in blood, youth violence, and terrorism, it is the United States that is acting in the more precautionary manner. The United States and Europe do not diverge as much as is claimed on the general use of precaution in regulation, but they often do diverge on the particular question of which risks to worry about and regulate most. This particularized divergence gives rise to visible conflicts. Part III considers the methods and challenges of comparative law and argues that the broader reality in transatlantic risk regulation is a process of "hybridization," in which both systems borrow legal concepts from each other in a complex and continuous mutual evolution. Part IV offers concluding thoughts."

""Better Regulation" is afoot in Europe. After several transatlantic conflicts over regulatory topics such as the precautionary principle, genetically modified foods, and climate change, Europe and America now appear to be converging on the analytic basis for regulation. In a process of hybridization, European institutions are borrowing "Better Regulation" reforms from both the US approach to regulatory review using benefit-cost analysis and from European member states' initiatives on administrative costs and simplification; in turn the European Commission is helping to spread these reforms among the member states. In many respects, the Better Regulation initiative promises salutary reforms, such as wider use of regulatory impact assessments and a reduction in unnecessary bureaucracy. In other respects, the European initiative speaks more of Procrustean deregulation than of better regulation. Meanwhile the European Commission still needs to establish the institutional infrastructure needed to succeed. This paper argues that the European program of "Better Regulation" is well-founded but could be even better if it adopted several strategies: enlarging the scope of impact assessment and benefit-cost analysis toward a broader, "warmer" and more evenhanded application of these tools, with greater attention to multiple risks; moving beyond a narrow focus on cutting administrative costs or simplification for their own sake, toward criteria that address benefits as well as costs; centralizing expert oversight so that impact assessments actually influence decisions, both to say 'no' to bad ideas and 'yes' to good ideas; and undertaking ex post evaluation of policies for adaptive policy revision and for improvement of ex ante assessment methods. These reforms would help Better Regulation achieve its true objective: better, not less or more. In turn, the US could study these European innovations and borrow from them where they prove successful. "