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Artikel

Access_open Experimental Regulations and Regulatory ­Sandboxes – Law Without Order?

Special Issue Experimental Legislation in Times of Crisis, Sofia Ranchordás & Bart van Klink (eds.)

Journal Law and Method, December 2021
Keywords experimental regulations, regulatory sandboxes, methodology, regulatory quality
Authors Sofia Ranchordás
AbstractAuthor's information

    This article discusses the key methodological shortcomings of experimental regulations and regulatory sandboxes. I argue that the poor design and implementation of these experimental legal regimes have both methodological and legal implications. The deficient design of experimental regulations and regulatory sandboxes can have three adverse effects: First, the internal validity of experimental legal regimes is limited because it is unclear whether the verified results are the direct result of the experimental intervention or other circumstances. The limited external validity of experimental legal regimes impedes the generalizability of the experiment. Second, experimental legal regimes that are not scientifically sound make a limited contribution to the advancement of evidence-based lawmaking and the rationalization of regulation. Third, methodological deficiencies may result in the violation of legal principles which require that experimental regulations follow objective, transparent, and predictable standards. I contribute to existing comparative public law and law and methods literature with an interdisciplinary framework which can help improve the design of experimental regulations and regulatory sandboxes. I draw on social science literature on the methods of field experiments to offer novel methodological insights for a more transparent and objective design of experimental regulations and regulatory sandboxes.


Sofia Ranchordás
Sofia Ranchordás is Full Professor of EU and Comparative Public Law at the Faculty of Law of the University of Groningen, The Netherlands & Associate Professor of Public Law, Innovation, and Sustainability at the Faculty of Law, LUISS Guido Carli, Italy.
Artikel

Access_open GMO Regulation in Crisis – The Experimental Potential of Regulation (EU) 2020/1043 on Covid-19 in Addressing Both a Crisis and a ­Pandemic

Special Issue Experimental Legislation in Times of Crisis Sofia Ranchordás & Bart van Klink (eds.)

Journal Law and Method, September 2021
Keywords experimental legislation, regulatory knowledge, GMO regulation, evaluation
Authors Lonneke Poort and Willem-Jan Kortleven
AbstractAuthor's information

    In this article, we analyse Regulation (EU) 2020/1043 on Covid-19 against the backdrop of the current deadlock in EU-regulation of genetically modified organisms (GMOs). We build on temporary and experimental legislation scholarship and employ a normative framework of regulatory knowledge. The Covid-19 Regulation aims at speeding up the development of GMO-based Covid-19 treatments or vaccines by temporarily suspending requirements that otherwise would have made for time-consuming and burdensome authorization processes. Although the Regulation lacks an explicit experimental purpose, we hypothesize that experiences with its functioning may be utilized in evaluation processes serving attempts to change the GMO legal framework. As such, it may fulfil a latent experimental function. We reflect on the types of knowledge that are relevant when evaluating experimental legislation and developing regulation more generally and argue that the inclusion of social knowledge is pertinent in dealing with complex issues such as GMO regulation. Experimental law literature focuses on gathering evidence-based knowledge about the functioning of legislation but virtually neglects knowledge about different experiences and value appreciations of various societal actors and social-contextual mechanisms. We propose that such social knowledge be included in the design of experimental legislation and that evaluation be approached bottom-up instead of top-down.


Lonneke Poort
Lonneke Poort is Associate Professor at the department of Sociology, Theory and Methodology of Law at Erasmus School of Law.

Willem-Jan Kortleven
Willem-Jan Kortleven is Assistant Professor at the department of Sociology, Theory and Methodology of Law at Erasmus School of Law, Rotterdam.
Artikel

Access_open Time and Law in the Post-COVID-19 Era: The Usefulness of Experimental Law

Special Issue Experimental Legislation in Times of Crisis, Sofia Ranchordas & Bart van Klink (eds.)

Journal Law and Method, September 2021
Keywords COVID-19, time and law, law-making, parliament, government, legal certainty
Authors Erik Longo
AbstractAuthor's information

    The COVID-19 pandemic swept the world in 2020 impelling us to reconsider the basic principles of constitutional law like the separation of power, the rule of law, human rights protection, etc. The two most pressing legal issues that have attracted the attention of legal scholars so far are, on the one hand, the different regulatory policies implemented by governments and, on the other, the balance among the branches of government in deciding matters of the emergency. The pandemic has determined a further and violent acceleration of the legislature’s temporal dimension and the acknowledgement that, to make legislation quicker, parliament must permanently displace its legislative power in favour of government. Measures adopted to tackle the outbreak and recover from the interruption of economic and industrial businesses powerfully confirm that today our societies are more dependent on the executives than on parliaments and, from a temporal perspective, that the language of the law is substantially the present instead of the future. Against this background, this article discusses how the prevalence of governments’ legislative power leads to the use of temporary and experimental legislation in a time, like the pandemic, when the issue of ‘surviving’ becomes dominant.


Erik Longo
Prof. Dr. Erik Longo is associate professor of Constitutional Law at the University of Florence.
Artikel

Access_open Thought Experiments in Law

Special Issue on Experimental Legislation in Times of Crisis, Sofia Ranchordas & Bart van Klink (eds.)

Journal Law and Method, May 2021
Keywords legal empirical studies, legal methodology, philosophy of law, thought experiments
Authors Gabriel Doménech-Pascual
AbstractAuthor's information

    Thought experiments have been widely used in virtually all sciences and humanities. Law is no exception. We can find countless instances of such experiments in both the legal practice and the legal theory. However, this method has hardly been studied by legal scholars, which contrasts with the vast literature devoted to it in other fields of knowledge. This article analyses the role that some thought experiments – those where an imaginary legal change is made, and its social effects are observed – may play in law. In particular, we show why these empirical legal thought experiments might be useful for the practice and theory of law, the main principles for conducting them and how the law deals with them.


Gabriel Doménech-Pascual
Dr. Gabriel Doménech-Pascual, PhD is full professor of Administrative Law at the University of Valencia, Spain. I thank Bart van Klink, Sofia Ranchordas, Alba Soriano, María José Añón, Pablo de Lora, Diego Papayannis, Arturo Muñoz, Violeta Ruiz, Pedro Herrera, Viviana Ponce de León, Maximiliano Marzetti, and two anonymous referees for their useful and thoughtful comments. All remaining errors are mine.
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