On risk governance and administrative law continued：A comparison of how law interacts with regulatory policy-making in Taiwan and the US (1/3)

The proposed research attempts to continue the applicant’s ongoing research interest on whether and how existing administrative law jurisprudence built upon the traditional paradigm of regulatory state can properly address the challenge of risk society and risk governance. The applicant plans to approach this inquiry from the perspective of law and policy interaction. From this perspective, the said inquiry can be further understood as the question of whether and how the court should review the regulatory decision/policy-making of the government. The proposed research further plans to expand the applicant’s prior research on the said inquiry by shifting the focus: 1) from specific regulatory fields to a general reflection on administrative law; and 2) from developing proxy indicators to opening cross-sectional dialogue. In short, the proposed research provides a general reflection on whether and how the Taiwanese court, in addition to developing proxy indicators that turn policy judgments into legal ones, can actively join the policy debate and express the court’s own view on the underlying policy issues. The proposed research selects the following doctrinal tools for judicial review of regulatory decision-making as research subjects, including: 1) the principle of legal reservation and the principle of clarity with the authorization of law; 2) the distinction between administrative discretion and uncertain legal concepts; and 3) the principle of proportionality. By adopting local and comparative literature review and leading cases analysis as research methods, the proposed 4-year research plans to investigate whether existing interpretation of these doctrinal tools is enough for the challenge of the contemporary regulatory environment, as well as whether there are rooms for improvement or alternative interpretation. Specifically, the central part of the proposed research will focus on drawing lessons from the comparative experience of the American law on the interaction between law and policy.As for the timeline, the first two years of the research will examine whether and how the Taiwanese administrative law jurisprudence can be enlightened by the US jurisprudence on: 1) the non-delegation doctrine and the intelligible principle; and 2) judicial review of agency’s interpretation of statute. The third year of the research will then turn to judicial review of the issue of fact, which involves the substantial evidence, arbitrary and capricious, as well as the hard-look test, and compare it with the experience of Taiwanese court on reviewing administrative discretion and uncertain legal concepts. Finally, the fourth year of the research will include two parts, which include: 1) reviewing recent US Supreme Court cases that apply strict scrutiny and hold the government action in dispute unconstitutional; and 2) introducing the history and the current status of the institutional reform litigation. Based on such investigation, the applicant hopes to reflect on whether the principle of proportionality can become a vehicle for opening cross-sectional dialogue that allows the court to express its policy view on the disputed regulatory decision-making. In doing so, the proposed research attempts to provide concrete doctrinal suggestions that bring existing doctrinal tools for judicial review more suitable/responsive for the regulatory reality.