The question of effective law has been studied in many fields of research, such as philosophy and sociology of law, law and economics, public policy and behavioural sciences. This article aims to treat it as a genuine administrative law issue which is currently having a significant impact on administrative procedures, especially affecting the way in which rules are adopted and implemented. Furthermore, the article attempts to reconcile conflicting views in existing literature on the meaning of effective law and on which factors lead to effectiveness by proposing an integrated approach: starting from a regulatory perspective it considers both traditional determinants of effectiveness, ie compliance and enforcement, as well as the emerging aspect of outcomes, focused on the idea that a rule can be defined as effective when its desired effects have been achieved and the public interest which justifies the rule has been safeguarded without producing unwanted or disfunctional consequences.

Far from being simply a decisional problem for institutions (arising in legislative, regulatory and administrative procedures), effectiveness calls for a “steering administration” and represents a criterion for decision-making, since expected effectiveness can be used in the logic of “whether” and “how” institutions should arrive at decisions.

The purpose of this paper is to use legal theory to clarify the nature and the components of effectiveness in legislation, in particular when it comes to choosing legislative policy, ie the legislative model used to tackle a certain issue via legislation. Part II is devoted to revealing the true meaning of the idea of effectiveness, ie as a functional link helping legislative drafters to move among three elements (ideals, situation, results) rather than as an absolute value that drafters should pursue in their work. Part III continues by investigating the problems that such confusion has produced within legislative discourse and practice, in particular by focusing upon two types of effectiveness as external and internal to the legislative process. Finally, Part IV proposes how this idea of effectiveness as a functional element of legislative work (and the consequent distinction between an external and an internal version) can (and should) affect the work of legislative drafters. This idea becomes particularly relevant in relation to the optimal location of the non-legal experts in the legislative process as a means of increasing the effectiveness of legislative policy.

The importance of effectiveness in lawmaking is acknowledged by scholars and practitioners alike. Yet the concept remains one of the most vague terms in legal vocabulary. The article maintains that effectiveness has concrete content that reflects the systemic coherence and alignment between four fundamental elements of legislation: objectives, content, context and results. From this perspective effective legislation is the result of complex mechanics in the conceptualisation, design and drafting of the law and cannot materialise unless it is a clear concern in the early phases of lawmaking. The article takes a closer look at the fundamental elements of effectiveness and articulates the specific challenges that lawmakers are facing when attempting to design and draft effective rules. The “effectiveness test”, a conceptual tools that adds “effectiveness lenses” to the existing lawmaking toolkit, is developed in more depth to a set of critical questions that lawmakers need to address in order to make conscious decisions on effective drafts.

Regulatory inspections and enforcement are seen by many as a key instrument to ensure the effectiveness of regulations – it is broadly assumed to be essential to have supervision and “deterrence” to promote compliance with rules, and thus achievement of regulatory outcomes. However, this presupposes that rules are indeed adequate for reaching outcomes, and that control is what drives compliance with rules. A different approach suggests that compliance is more complex and driven by a combination of factors (ethics, social conformity, procedural justice and legitimacy etc), that rules are imperfect, and that risk-focused, risk-proportionate “regulatory delivery” will achieve better results, more “effectiveness”. Considering a case study of occupational safety inspections and outcomes in Britain, France and Germany, we observe that higher numbers of inspections are not correlated with less fatal incidents, and that, on the contrary, the best outcomes are achieved in the country having the least inspection visits, the most risk-focused system, and the broadest approach to “regulatory delivery”, combining engagement with regulated industries, guidance, responsive and risk-proportionate enforcement, and risk-based, targeted inspections.

This paper investigates traditional and new tools for increasing the effectiveness of rules and enforcement strategies. As a preliminary concern, it underlines that there are two sides to effectiveness that cannot be approached separately: effectiveness as perfect compliance with the terms of rules, and effectiveness as a result of rules which incentivise behaviours to meet the “spirit of the law”. In order to achieve this comprehensive approach to effectiveness, rules must be evidence-based, plain, understandable and accepted. Moreover, a clear understanding of compliance drivers is needed. Deterrence and all other possible motivations that go beyond the rational calculus should be assessed by decision-makers, such as internal motivation, procedural fairness, cooperation, social norms, heuristics and bias. Enriching the rationality assumption with other drivers of compliance does not mean dismissing traditional rules or enforcement tools, which conversely remain crucial for the purpose of supporting voluntary compliance and for preventing non-compliance. However, deterrence should be calibrated by a risk-based, responsive and proportional approach to (simplified) rules and enforcement strategies. Trust in public authorities, supportive and cooperative public administrations are also fundamental in order to increase voluntary compliance, and a cognitive-based approach should complement these views.

The risk-based approach has been introduced to the General Data Protection Regulation (GDPR) to make the rules and principles of data protection law “work better”. Organisations are required to calibrate the legal norms in the GDPR with an eye to the risks posed to the rights and freedoms of individuals. This article is devoted to an analysis of the way in which this new approach relates to “tick-box” compliance. How can the law enhance itself? If handled properly by controllers and supervisory authorities, the risk-based approach can bring about a valuable shift in data protection towards substantive protection of fundamental rights and freedoms. While the risk-based approach has a lot of potential, it also has a risk of its own: it relies on controllers to improve compliance, formulating what it means to attain compliance 2.0.

The potential exposure to organisms and humans of pharmaceutical waste presents society with a wicked problem. The health benefits of pharmaceuticals are obvious, but the public awakening to the risks posed by pharmaceutical residues in the environment is in its early stages. Regulators in the US and the EU require an environmental risk assessment of a medicinal product before it can enter the market. This article compares the US and EU approach to assessing these risks, with the purpose of providing a different perspective on how to approach this delicate balancing act of risk and benefit and to reveal the different values underpinning the risk assessment.

In general, a functioning liability and insurance framework should ensure an adequate level of third party claimant protection and a reasonable and adequate final allocation of liability costs for the involved parties. This research examines whether the liability and insurance framework resulting from the amendment to German Road Traffic Act meets these two central objectives. The article shows that a reasonable and adequate allocation of liability costs is inhibited because of several barriers that hinder the shift of liability costs from the owner of the vehicle to the manufacturer. In particular, it is highly dependent on the practical application of subrogation claims. The ability and the motivation of motor insurers to conduct subrogation claims could be negatively affected because of a lack of required technical and engineering know-how and because a market-wide conduction of subrogation claims would erode the business model of motor insurance. This article proposes changes to the current framework particularly by removing specific exclusions of product liability and by easing the burden of proof of a product defect.