‘Towards a Complementary Relationship – The Judge and the Regulatory Agency in the Realm of Utilities Regulation’
January 30, 2014 Leave a comment
The CCP Spring seminar series continues on Friday 31st January with Despoina Mantzari (CCP), our newly-appointed Research Associate, who will be presenting her research entitled ‘Towards a Complementary Relationship – The Judge and the Regulatory Agency in the Realm of Utilities Regulation‘. An abstract for Deni’s seminar can be found below.
The increased recourse to expert economic evidence and analysis in utilities regulation brings to the forefront the appropriate scope of review of regulatory decisions. The question asked in this paper is positive and normative. Does and should economic evidence change the scope, process and intensity of review? On a broader level, with the ever-increasing presentation of economic evidence in regulatory disputes, what is the fit with older conceptions of the court-regulatory agency relationship in the US and the UK?
The argument unfolds in two parts. The first part identifies the divergent visions of the court-agency relationship in the US and the UK. It then uncovers the historical, institutional and constitutional factors that have given rise to the conception of an antagonistic relationship between the judge and the regulatory agency in the US and of a harmonious one in the UK. The second part challenges the assumptions that have preserved the antagonistic/harmonious status quo and offers an alternative set of considerations that should inform judicial review of economic evidence based on the notion of relative institutional competence. The integration of comparative institutional analysis into the discussions on the appropriate scope of review of economic evidence invites the assessment of the relative attributes of both the regulatory agencies and the courts (and other actors) as well as the assessment of which of these institutions allows the broadest representation of interests before deciding on the appropriate degree of deference. By taking into account their relative institutional competence in resolving the question at issue, courts are found in a complementary relationship with the agency and the other actors within the regulatory space. The normative claim of the paper is that the insights of comparative institutional analysis offer a more informed view on the appropriate scope of review of economic evidence that is in line with institutional realities and determinants of judicial behavior. The descriptive claim is that there are instances in the US and UK case law that seem to support the attention to relative institutional competence considerations.
The seminar will take place from 13:00-14:00 in the Thomas Paine Study Centre, Room 1.2.