Law Commons^™

The Deregulation Deception, Cary Coglianese, Natasha Sarin, Stuart Shapiro

All Faculty Scholarship

President Donald Trump and members of his Administration repeatedly asserted that they had delivered substantial deregulation that fueled positive trends in the U.S. economy prior to the COVID pandemic. Drawing on an original analysis of data on federal regulation from across the Trump Administration’s four years, we show that the Trump Administration actually accomplished much less by way of deregulation than it repeatedly claimed—and much less than many commentators and scholars have believed. In addition, and also contrary to the Administration’s claims, overall economic trends in the pre-pandemic Trump years tended simply to follow economic trends that began years earlier. …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 04-2021, Michael M. Bowden, Barry Bridges, Political Roundtable

Life of the Law School (1993- )

No abstract provided.

Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger

Faculty Scholarship

Written as our contribution to a festschrift for the noted Italian administrative law scholar Marco D’Alberti, this essay addresses transition between Presidents Trump and Biden, in the context of political power transitions in the United States more generally. Although the Trump-Biden transition was marked by extraordinary behaviors and events, we thought even the transition’s mundane elements might prove interesting to those for whom transitions occur in a parliamentary context. There, succession can happen quickly once an election’s results are known, and happens with the new political government immediately formed and in office. The layer of a new administration’s political leadership …

A Typology Of Justice Department Lawyers' Roles And Responsibilities, Rebecca Roiphe

Articles & Chapters

President Trump’s administration has persistently challenged the legitimacy of the Department of Justice (“DOJ”). In the past, DOJ, like other governmental institutions, has been fairly resilient. Informal norms and practices have served to preserve its proper functioning, even under pressure. The strain of the past three years, however, has been different in kind and scale. This Article offers a typology of different roles for DOJ lawyers and argues that over time the institution has evolved by allocating different functions and responsibilities to different positions within DOJ. By doing so, it has for the most part maintained the proper balance between …

The Ecology Of Transparency Reloaded, Seth F. Kreimer

All Faculty Scholarship

As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the …

Eating Is Not Political Action, Joshua Galperin, Graham Downey, D. Lee Miller

Articles

Food and environment are cultural stalwarts. Picture the red barn and solitary farmer toiling over fruited plains; or purple mountains majesty reflected in pristine waters. Agriculture and environment are core, distinct, American mythologies that we know are more intertwined than our stories reveal.

To create policy at the interface of such centrally important and overlapping American ideals, there are two options. Passive governance fosters markets in which participants make individual choices that aggregate into inadvertent collective action. In contrast, assertive governance allows the public, mediated through elected officials, to enact intentional, goal oriented policy.

American mythologies of food and environment …

Visual Rulemaking, Elizabeth G. Porter, Kathryn A. Watts

Articles

Federal rulemaking has traditionally been understood as a text-bound, technocratic process. However, as this Article is the first to uncover, rulemaking stakeholders—including agencies, the President, and members of the public—are now deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. Rarely do these visual contributions appear in the official rulemaking record, which remains defined by dense text, lengthy cost-benefit analyses, and expert reports. Perhaps as a result, scholars have overlooked the phenomenon we identify here: the emergence of a visual rulemaking universe that is splashing images, GIFs, and videos across social media …

Slides: Perspectives On Water Management In Arizona, Kathy Jacobs

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Kathy Jacobs, Director, Center for Climate Adaptation Science and Solutions (CCASS), Department of Soil, Water and Environmental Science, University of Arizona

25 slides

The Democratization Of Energy, Joseph P. Tomain

Faculty Articles and Other Publications

The electricity industry is changing in dramatic ways.Most significantly, as demonstrated by the Obama Administration's Clean Power Plan, the country is witnessing the merger of energy and environmental regulation. Historically, energy regulation was driven by the need to produce more power for economic growth. By contrast, environmental regulation attended to the pollution of the environment. Production of energy depends upon the use of natural resources, and throughout the fuel cycle from extraction and transportation to the burning and disposal of those resources, the environment is directly affected. Most dramatically, greenhouse gas emissions present climate change challenges. In order to effectively …

Private Enforcement Of Statutory And Administrative Law In The United States (And Other Common Law Countries), Stephen B. Burbank, Sean Farhang, Herbert M. Kritzer

All Faculty Scholarship

Our aim in this paper, which was prepared for an international conference on comparative procedural law to be held in July 2011, is to advance understanding of private enforcement of statutory and administrative law in the United States, and, to the extent supported by the information that colleagues abroad have provided, of comparable phenomena in other common law countries. Seeking to raise questions that will be useful to those who are concerned with regulatory design, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development …

Governing By Guidance: Civil Rights Agencies And The Emergence Of Language Rights, Ming Hsu Chen

Publications

On the fiftieth anniversary of the Civil Rights Act of 1964, this Article asks how federal civil rights laws evolved to incorporate the needs of non-English speakers following landmark immigration reform (the 1965 Hart-Cellar Act) that led to unprecedented migration from Asia and Latin America. Based on a comparative study of the emergence of language rights in schools and workplaces from 1965 to 1980, the Article demonstrates that regulatory agencies used nonbinding guidances to interpret the undefined statutory term "national origin discrimination" during their implementation of the Civil Rights Act of 1964. Their efforts facilitated the creation of language rights, …

Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer

All Faculty Scholarship

Our aim in this Article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of …

Liberalism And Postliberalism In Bolivarian Venezuela, Tony Petros Spanakos

Department of Political Science and Law Faculty Scholarship and Creative Works

In the last half-decade, the “rise of the left” in Latin America has been studied extensively by many scholars. Whether framed as one, two, or many lefts, its various party leaders have been vocal in opposition to neoliberalism, although the orientation of their policies and governments toward neoliberalism has been mixed (Panizza 2009). The most influential and visible case of an anti-neoliberal government is that of Venezuelan president Hugo Chávez Frías.

The five books reviewed here, drawing on research on Venezuela, share a common scholarly interest in liberalism, pluralism, and account- ability, although some defend liberalism (Brewer-Carías, Corrales and Penfold), …

Where You Stand Depends On Where You Sit: Bureaucratic Politics In Federal Workplace Agencies Serving Undocumented Workers, Ming H. Chen

Publications

This Article integrates social science theory about immigrant incorporation and administrative agencies with empirical data about immigrant-serving federal workplace agencies to illuminate the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants' rights can be protected when workplace agencies incorporate immigrants into labor law enforcement in accordance with the agencies' professional ethos and organizational mandates. Building on Miles' Law that "where you stand depends on where you sit," this Article argues that agencies exercise discretion in the face of contested law and in contravention to a political climate hostile to undocumented immigrants for the purpose …

Report Surveys Colorado River Basin Leaders: Collaborative Approaches To Dwindling Supplies Are Highlighted, Sarah Bates, University Of Montana Missoula. Center For Natural Resources And Environmental Policy

Navigating the Future of the Colorado River (Martz Summer Conference, June 8-10)

4 pages.

Press release "April 14, 2011"

"Executive Summary April 2011" of report, Thinking Like a River Basin: Leaders' Perspectives on Options and Opportunities in Colorado River Management

Full report available at:

http://www.carpediemwest.org/wp-content/uploads/Thinking_Like_A_River_Basin_8-20-13.pdf

Punctuated Equilibrium: A Model For Administrative Evolution, Mark Niles

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Rule-Making And The American Constitution, Peter L. Strauss

Faculty Scholarship

This chapter leaves behind the standard accounts of federal agencies to examine the role of the presidency in fashioning regulatory outputs. It recounts — and with reference to American ‘checks and balances’ ideas — a steady accretion of power at the centre, the result of which has been to render rulemaking increasingly a political rather than ‘expert’ activity. Whether the process is reversible, or whether ongoing crises in finance and security will serve to concretize this profound constitutional development, remains to be seen.

Slides: Livestock Grazing On The Public Lands, Joe Feller

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: Joe Feller, Professor of Law, Arizona State University Law School; Visiting Professor, University of Colorado Law School

33 slides

Agenda: The Promise And Peril Of Oil Shale Development, University Of Colorado Boulder. Natural Resources Law Center

The Promise and Peril of Oil Shale Development (February 5)

The largest known oil shale deposits in the world are in the Green River Formation, which covers portions of Colorado, Utah, and Wyoming. Fully one-half of the world’s oil shale lies within 150 miles of Grand Junction, Colorado, and about 80% of these reserves are on federal land. Estimates of recoverable reserves in the Green River Formation range from 500 billion to 1.53 trillion barrels. At present consumption rates, this is enough oil to satisfy 100% of U.S. demand for well over 100 years.

Development of oil shale could cause significant impacts on the Colorado Plateau. It would provide for …

Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese

All Faculty Scholarship

Recent controversy over the unitary executive may be part of what Steven Calabresi and Christopher Yoo have called the “oldest debate in constitutional law.” Yet in this essay, I ask whether this debate is as much legal as it is political. Focusing on the Environmental Protection Agency’s decision to grant California a waiver from national automobile emissions standards, I contrast the divergent reactions to presidential influence under President Bush and President Obama. In both administrations the EPA faced clear presidential pressure, but critics of President Bush’s involvement generally applauded the actions taken by President Obama. The main difference appears to …

The Politics Of Administrative Law: New York's Anti-Bureaucracy Clause And The O'Brian-Wagner Campaign Of 1938, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

The controversy over administrative law in New York in 1938 was a decisive moment in the emergence of procedural Diceyism in the United States. On a stage crowded with partisan and legal performers, the politics of administrative law played out in two acts. In the first, the state's trial lawyers mounted a campaign to heighten judicial review of the state's administrative agencies. Their efforts culminated in the adoption of the anti-bureaucracy clause at the state constitutional convention when regular factions in the state's two major parties decided it would serve their purposes. New Yorkers rejected the measure after liberal politicians …

Agenda: Shifting Baselines And New Meridians: Water, Resources, Landscapes, And The Transformation Of The American West, University Of Colorado Boulder. Natural Resources Law Center

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

The Center’s 29th annual conference will focus on the changes in the West resulting from rapid population growth, development, disrupted historical weather patterns and the effects of those changes on land, water, and energy resources. Speakers and panelists will address the adaptability of the legal and political institutions and how the transformation of the West may foreshadow fundamental changes to these institutions.

The agenda includes panel discussions that will address:

• Water for the 21^st Century —the big questions in Western water and rethinking Western water law.
• The Future of Energy —practical and sophisticated solutions to overcome the energy …

Temporary Accidents?, Elizabeth Magill

All Faculty Scholarship

Review of Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government (Princeton: Princeton University Press, 2007).

Slides: The Future Public Law Of Private Ecosystems, J. B. Ruhl

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: J.B. Ruhl, Florida State University Law School

18 slides

Federalism And Natural Resources Policy [Outline], Robert L. Fischman

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

2 pages.

"Robert L. Fischman, Indiana University School of Law–Bloomington"

"Outline of Presentation"

Private Rights And Collective Governance: A Functional Approach To Natural Resources Law, Eric T. Freyfogle

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

4 pages.

"Eric T. Freyfogle, Max L. Rowe Professor of Law, University of Illinois College of Law"

Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett

Cornell Law Faculty Working Papers

Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE).

A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …

Reviewed Work: Understanding Institutional Diversity By Elinor Ostrom, Jonathan G.S. Koppell

Publications from President Jonathan G.S. Koppell

No abstract provided.

Turning Gold Into Epg: Lessons From Low-Tech Democratic Experimentalism For Electronic Rulemaking And Other Ventures In Cyberdemocracy , Peter M. Shane

The Ohio State University Moritz College of Law Working Paper Series

Empowered Participatory Governance, or EPG, is a model of governance developed by Archon Fung and Erik Olin Wright that seeks to connect a set of normative commitments for strengthening democracy with a set of institutional design prescriptions intended to meet that objective. It is derived partly from democratic theory and partly from the study of real-world attempts to institutionalize transformative strategies for democratizing social and political decision making. This paper reviews Fung and Wright's recent volume, Deepening Democracy: Institutional Innovations in Empowered Participatory Governance, and considers the relevance of the authors' and other contributors' insights for the future of a …

Approaches To Regulatory Reform In The United States: A Response To The Remarks Of Professors Levin And Freeman, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.