President/Executive Department 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. …

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 …

Pandemic Response As Border Politics, Michael R. Kenwick, Beth A. Simmons

All Faculty Scholarship

Pandemics are imbued with the politics of bordering. For centuries, border closures and restrictions on foreign travelers have been the most persistent and pervasive means by which states have responded to global health crises. The ubiquity of these policies is not driven by any clear scientific consensus about their utility in the face of myriad pandemic threats. Instead, we show they are influenced by public opinion and preexisting commitments to invest in the symbols and structures of state efforts to control their borders, a concept we call border orientation. Prior to the COVID-19 pandemic, border orientation was already generally …

Healthy And Unhealthy Responses To American Democratic Institutional Failure, Thomas D'Anieri

CMC Senior Theses

I have set out on the hunch that politics in America “feels different,” that we are frustrated both with our institutions as well as with one another. First, I will seek to empirically verify this claim beyond mere “feelings.” If it can be shown that these kinds of discontent genuinely exist to the extent that I believe they do, I will then explain why people feel this way and why things are different this time from the economic, political, and social points of view. Next, I will examine two potential responses, what I will call the populist and the institutional …

The Unintended Consequences Of Safety Regulation, Sherzod Abdukadirov

Sherzod Abdukadirov

This study examines how risk trade-offs undermine safety regulations. Safety regulations often come with unintended consequences in that regulations attempting to reduce risk in one area may increase risks elsewhere. The increases in countervailing risks may even exceed the reduction in targeted risks, leading to a policy that does more harm than good. The unintended consequences could be avoided or their impacts minimized through more careful analysis, including formal risk trade-off analysis, consumer testing, and retrospective analysis. Yet agencies face strong incentives against producing better analysis; increased awareness of risk trade-offs would force agencies to make unpalatable and politically sensitive …

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …

The Limits Of Debate Or What We Talk About When We Talk About Gender Imbalance On The Bench, Keith Bybee

Keith J. Bybee

What do we talk about when we talk about gender imbalance on the bench? The first thing we do is keep track of the number of female judges. Once the data has been gathered, we then argue about what the disparity between men and women in the judiciary means. These arguments about meaning are not freestanding. On the contrary, I claim that debates over gender imbalance occur within the context of a broader public debate over the nature of judicial decisionmaking. I argue that this public debate revolves around dueling conceptions of the judge as impartial arbiter and as politically …

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

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility …

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 …

Legacy Of The Clinton Bubble, Timothy Canova

Law Faculty News Articles, Editorials, and Blogs

This article looks at the economy following the Clinton administration period in the White House.

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"

The Legalization Of The Presidencey: A Twenty-Five Year Watergate Retrospective, Michael A. Fitts

All Faculty Scholarship

No abstract provided.

Agenda: Sustainable Use Of The West's Water, University Of Colorado Boulder. Natural Resources Law Center

Sustainable Use of the West's Water (Summer Conference, June 12-14)

Conference organizers and/or faculty included University of Colorado School of Law professors David H. Getches, Lawrence J. MacDonnell, Teresa A. Rice, Elizabeth A. Rieke and Charles F. Wilkinson.

Sustainable development is on the policy agenda for the '90s. What does sustainability mean? Is it a realistic concept? Are water rights compatible with sustainable use? The Center's 16th annual summer conference will explore the meaning of sustainability in the context of the West's demands, development, and natural values. Presentations by leading experts will address the broad concept of sustainable development, with a particular look at Arizona's experience. The focus will be …

Functional Explanation And Metaphysical Individualism, Justin Schwartz

Justin Schwartz

A number of (present or former) analytical Marxists, such as Jon Elster, have argued that functional explanation has almost no place in the social sciences. (Although the discussion is framed in terms of a debate among analytical Marxists, the point is quite general, and Marxism is used for illustrative purposes.) Functional explanation accounts for what is to be explained by reference to its function; thus, sighted organism have eyes because eyes enable them to see. Elster and other critics of functional explanation argue that this pattern of explanation is inconsistent with "methodological individualism," the idea, as they understand it, that …

Ways To Think About The Unitary Executive: A Comment On Approaches To Government Structure, Michael A. Fitts

All Faculty Scholarship

No abstract provided.

Controlling Congress: Presidential Influence In Domestic Fiscal Policy, Michael A. Fitts, Robert Inman

All Faculty Scholarship

No abstract provided.