Monday, September 10, 2018

A National Business Deregulatory Agenda?

Slide1I am writing this fall about (among other things) business deregulation in the Trump era.  Given that the President's campaign for office featured business deregulation as a prominent tenet, it seems like a good time to visit what's been done to fulfill those campaign promises.  Business being a broad area for focus, I am trying to narrow the subject down a bit by picking some salient examples.

I reference the early executive orders on agency rule rulemaking and assessments of their success.  See, e.g., here and here.  But the deregulatory moves impacting business that have gotten the most media attention are the Trump administration's tax cuts and a few smaller initiatives--like the tamp-backs to parts of bank regulation in the Dodd–Frank Wall Street Reform and Consumer Protection Act.  Apart from these headline items, what catches your attention, if anything, about the current administration's forays into deregulation?  I would be interested in knowing.

Of course, there also are areas where it seems that there is new business regulation or business re-regulation rather than business deregulation.  Perhaps the most prominent area in which the current administration has taken a non-deregulatory approach to business operation is in international trade.  The reported outcome of recent trade talks with Mexico, for example, as well as the imposition of significant tariffs on Chinese imports earlier this year, have both been classified as contrary or counterproductive to a deregulatory agenda.  See, e.g., here and here, respectively.  Query whether and, if so, how these contrary or counterproductive measures should be weighed in any evaluation of business deregulatory success . . . .

And that's just it.  Successful deregulation is somewhat in the eye of the beholder.  No single reference point represents an established determinant or embodiment of deregulatory triumph.  There are no standardized rules of the road governing the evaluation of efficacious deregulatory actions (taken individually or collectively).  Thus, political and other biases often underlie reports of effective or ineffective deregulatory initiatives, just as they underlie reports of effective or ineffective regulatory initiatives, even though deregulatory impact may intuitively seem to be more capable of simple measurement and objective assessment.

I will be presenting a draft paper on business deregulation during the Trump administration at an upcoming symposium sponsored by the Mercer Law Review.  The symposium, "Corporate Law in the Trump Era," will be held on October 5 at the Mercer University School of Law.  I will have more to say on that essay in later posts, I am sure.  But for now, I invite you to let me know what current areas of business deregulation interest you most.  I would like to make my choices meaningful to the target audience for this essay, which likely includes many BLPB readers.

Current Affairs, Joan Heminway | Permalink


The tussle between energy markets and deregulation has produced mixed results. Particularly, I am interested to see how deregulation of agricultural and forest biofuels may benefit and/or hurt both conventional oil and gas law and other renewables, including solar, wind, geothermal, tidal, and other biofuels. USDA, EPA, and DOE have been at odds over renewable energy regulation. With resignation of Scott Pruitt, it will be interesting to see changes in energy deregulation.

Posted by: Nadia Ahmad | Sep 10, 2018 11:45:32 AM

Thanks, Nadia. That's very helpful. I know coal power deregulation has been causing a bit of a stir. See, e.g., Let me know (feel free to use email) if you see anything that you appreciate for its wisdom in this area . . . .

Posted by: joanheminway | Sep 10, 2018 12:04:52 PM

Each of the following areas are playing a role in small business growth:

We have seen rollbacks with regard to both NLRB and DOL imposition of a “joint employer” rule with regards to franchises, there has been a reversal on “micro union” and “snap elections,” there still remains no finality of what were to be new minimums for exempt employees which has left business far more flexible (I know that businesses were reorganizing and limiting promotion due to the doubling of base salary). We have seen recently that the NLRB is looking to reduce the burdens on employers imposed in the preceding eight years with regards to employee handbooks and electronic communications using employer resources (electronic medium).

As a former small manufacturer and counsel to small business, I will tell you that these regulatory rollbacks have greatly enhanced the willingness of these businesses to “grow” their business and deploy capital.

Posted by: Tom N. | Sep 11, 2018 8:52:17 PM

Thanks, Tom N. Small business does not get the attention it observes. I appreciate these thoughts and will look to work them in. And if you know of (or find) a study that supports what you are seeing in terms of small business development, please send a link or citation.

Posted by: joanheminway | Sep 11, 2018 9:18:01 PM

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