行政事前控制

大多数学者在探讨行政权的控制理论时, 基本上都是从行政权外部控制的角度出发的。外在性的他律控制虽是必要的, 但它却是被动的、高成本的。对行政权的控制, 内在化的控制才是主动地、低成本的控制。而行政法学界对于这一重大的行政权控制模式却鲜有进行系统研究者。对行政权自我控制问题进行系统研究, 应包括行政权自我控制的法律意义、行政权自我控制机制、行政权自我控制对行政法治的挑战等方面。

在行政审批制度改革进入深水区的当下，法治化成为破解“天花板效应”的必要条件。审批制度改革的法治化是一个包含了立法、法律实施、程序设计和责任机制的系统工程。立法和必要的法制调适是基础，为此需要管控部门立法新设审批事项、实现审批大类下各法律概念的逻辑统一、推进“先行先试”以增强法制调适。同时，行政许可法实施机制的强化亦为关键，需要加强部门间横向协调，强化法律解释权、变更撤销权的运用，建立许可“立、改、废”评估机制。而“法治社会”的基础制度建设本身即构成改革的土壤，为此需以法律制度促进和培育社会组织的成长，以法治手段培育和规范中介机构。最后，从“内部控制”到“外部责任化”的切换，包括引入“开放式决策”和外部监督，则是解决改革动力不平衡、压力不足问题的重要路径。

人工智能应用为何能够嵌入公共治理，如何发挥人工智能应用于公共治理之价值是学界探讨不止的重要议题。采用内容分析法对近15年国内研究文献作系统梳理发现，人工智能应用正在重构公共治理的问题场域，并逐渐成为改进公共治理绩效和达到善治目标的工具。这三方面共同构成了人工智能应用嵌入公共治理的内在机制。现阶段，公共治理中人工智能的应用重点集中在基本公共服务供给、城市应急与环境治理等方面，但人工智能应用仍面临安全、侵权、解构秩序、冲击法治体系和道德伦理等风险。国际上制定国家战略政策、建立监测体系、加快融入公共服务的实践经验，为我国公共治理人工智能应用的纵深发展和风险应对提供了借鉴。立足于我国公共治理的现实，人工智能应用的未来可为方向是智能行政审批、责任分摊机制、公共政策制定、公共伦理设计和政府新型智库建设等。

This paper looks beyond more traditional evaluation activities to focus primarily on evaluation up front. It suggests that the early appraisal of an investment case or a project should apply essentially the same evaluation criteria that will be used in ex post evaluation, and thus increase the likelihood of a successful project outcome. However, the initial plan might be altered as result of subsequent analysis, assessment, negotiation, positioning, and the exercise of power. The last part of this paper presents an empirical study of 23 projects, which examines the complexity of processes that occur in the idea- and decision phases.

We analyze the optimal mix of ex ante experimentation and ex post learning for the dynamic adoption of activities with uncertain payoffs in a two-phase model of information diffusion. In a first preintroduction phase, costly experimentation is undertaken to decide whether to adopt an activity or abandon experimentation. In a second stage following adoption, learning can continue possibly at a different pace while the activity remains in place; the withdrawal option is exercised following the accumulation of sufficiently bad news. We compare from a law and economics perspective the performance of three regulatory frameworks commonly adopted to govern private experimentation and adoption incentives: liability, withdrawal, and authorization regulation. Liability should be preempted to avoid chilling of activities that generate large positive externalities consistent with the preemption doctrine. Liability should be used to discourage excessive experimentation for activities that generate small positive externalities. Authorization regulation should be lenient whenever it is used consistent with the organization of regulation in a number of areas, ranging from product safety to antitrust. This paper was accepted by Joshua Gans, business strategy.

Transaction cost attributes, such as the complexity of the product being purchased, shape the risk that government contracts will fail. When transaction cost risks are particularly strong, a common prescription is to avoid contracting altogether or, if it is unavoidable, to spend additional resources on contract management activities. This article presents evidence on the size and variability of governments’ ex ante transaction cost spending, using original data from 72 contracts issued by 47 Danish local governments. Ex ante transaction costs average 2.7 percent per contract and are relatively higher when services are more complex and lower when governments have prior contracting experience and contracts were larger. The analyses suggest the importance of distinguishing between transaction cost attributes and governments’ choices to spend resources in response to them. Effective management spending in the face of transaction costs can help governments organize and capture value from contracting with private businesses.

Scholars have argued that legislatures can use administrative procedures to constrain bureaucratic discretion and maintain policy control when delegating authority. One such mechanism is the formal authority to review agency rule proposals. We find that legislatures with stronger formal authority to review rules ex ante are viewed by agency heads as more influential in their rulemaking decisions, but this power is mitigated when such review is checked by the governor. Our analysis demonstrates the impact of institutional arrangements on general state legislative influence over policy implementation. Understanding this element of legislative control over state bureaucracies helps explain variations in state-level policymaking.The General Assembly finds that it must provide a procedure for oversight and review of regulations adopted pursuant to [the] delegation of legislative power to curtail excessive regulation and to establish a system of accountability so that the bureaucracy must justify its use of the regulatory authority before imposing hidden costs upon the economy of Pennsylvania.Regulatory Review Act of 1982Pennsylvania General Assembly

… an enacting coalition anticipates and deals with this problem ex ante and ex post, and, as a … , and so forth) ex ante and, failing that, what they can do ex post when noncompliance occurs…

Why do frequently criticized input controls survive in the management of public spending while apparently more enlightened output/outcome controls come and go? The question matters, because output/outcome controls are often assumed in public financial management and related literature to lead to superior policy performance as compared with input-focused approaches. We tackle the question by applying qualitative push – pull analysis to compare one key type of input controls (administration cost [AC] controls) with one much-discussed form of output/outcome controls (performance targets linked to spending allocations) in one major country case, the United Kingdom, over two decades. Drawing on documents and in-depth interviews with 120 key political and bureaucratic players, we conclude that bureaucratic inertia at most only par-tially explains the survival of input AC controls in this case. The push/pull factors associated with the politics of blame and credit made the political players fair-weather output controllers but all-weather input controllers.

… prime example for the governance of emerging technologies. … by a variety of anticipatory practices that raised expectations … anticipatory approaches such as anticipatory governance (…

… Anticipatory governance, a new model of decision making … I review the emerging anticipatory governance literature and … are applying concepts of anticipatory governance to climate …

With the rapid pace of technological innovation, traditional methods of policy formation and legislating are becoming conspicuously anachronistic. The need for regulatory choices to be made to counter the deadening effect of regulatory lag is more important to developing markets and fostering growth than achieving one-off regulatory perfection. This article advances scholarship on innovation policy and the regulation of technological innovation in the European Union. It does so by considering what building an agile yet robust anticipatory governance regulatory culture involves. It systematically excavates a variety of tools and elements that are being put to use in inventive ways and argues that these need to be more cohesively and systemically integrated into jurisdictions’ regulatory toolbox. Approaches covered include strategic foresight, the critical embrace of iterative policy development and regulatory learning in the face of uncertainty, and the embrace of bottom-up approaches to co-creation of policy such as policy labs and the testing and regulatory learning through pilot regulation and experimentation. The growing use of regulatory sandboxes as an EU policy tool to boost innovation and navigate regulatory complexity, as seen in the EU AI Act, is also probed.

In response to uncertain times, liberal democracies aspire to develop anticipatory practices that usher in changes in policies and governance. These practices include creating visions and implementing roadmaps, which seek to address, and ultimately preempt, future challenges (Anderson, 2010). While such practices are increasingly implemented today in decision-making in Nordic countries and around the world (Dreyer & Stang, 2013; Beckert & Bronk, 2018; Beerten & Kranke, 2022), their implications are seldom studied, especially in the context of higher education. This article addresses this gap in current research by analyzing the case of the future governance of Finnish higher education. The analysis focuses on the creation of visions and roadmaps, as well as reports anticipating the future needs of higher education. The article investigates how the anticipation of higher education needs has developed and how it is related to current visions. Moreover, it examines the consequences of anticipatory practices in the development of policy and governance and investigates the policy future that will be enacted through these anticipatory practices. The findings show that the anticipation of higher education needs underpins the strategic choices affecting the allocation of resources and the population’s educational levels in the long term, while visions draw actors into the coproduction of future imagining and instigate widespread reforms. Visions and other practices underpin anticipatory governance in higher education, where goals for the long term are established through the negotiation of normative preferences based on a human capital view of the future.

In an era of global sanitary, economic and ecological crisis, beliefs in the predictive power of artificial intelligence (AI) progressively penetrate the legal and political spheres, in search of new ways to anticipate and govern the future. In this context, it is critical to understand the idiosyncratic nature of the interplay between governance and algorithmic logics of prediction. This contribution discusses how the association between governance and AI makes the future knowable in the present and shapes a programmatic way of formalising, justifying and deploying action in the here and now. We focus on three principles of institutional mobilisation in the face of uncertainty and indeterminacy: precaution, pre-emption and preparedness, each of which is affected by the use of AI relying on so-called ‘real-time predictions’. Drawing from risk theory and Science and Technology Studies, we argue that the current convergence between AI and governance is shaping a new sociotechnical imaginary, promoting a distinctive conception of life and of the future in the age of the Anthropocene.

… This paper assesses the anticipatory capacity of the Australian energy system and identifies … of anticipatory practices, scope of anticipatory work, and types of anticipatory governance …

… anticipatory governance, a crucial paradigm shift defined by the formulation and execution of risk-prevention plans. We first expand anticipatory governance's … the anticipatory paradigm …

… First, it posited that, due to transaction costs of gathering information and influencing policy makers, special interests can twist public policies in their favor (Scott, Ball, and Dale, 360). …