Monday, March 18, 2019
OK. So, the title of this post is clickbait of sorts. I am not writing about Monty Python, sorry to say. But I am writing about something completely different for me--very outside my norm. In fact, this past year, I have been researching and writing a bit outside my norm . . . .
It all started with two blog posts here on the BLPB--here and here. My posts, focusing on Trump's deregulatory promises and early pronouncements, followed an earlier one written by Anne Tucker. Anne and I then organized an discussion group at the 2018 Association of American Law Schools Annual Meeting focusing on regulation in the Trump Era: "A New Era for Business Regulation?" I then presented some of my research on business deregulation at the National Business Law Scholars ("NBLS") conference in June 2018. A related Southeastern Association of Law Schools ("SEALS") discussion group followed later in the summer of 2018.
As I began to accumulate observations and information from these academic encounters, I came to vision a series of two papers that would enable me to engage in related research and make some observations. (I first shared my conception for the two-paper series in my NBLS presentation.) Thanks to an invitation from the UMKC Law Review to publish an administrative law reflection of my choice and an invitation from the Mercer Law Review to turn our SEALS discussion group into a published symposium volume, I was able to channel my curiosity about presidential deregulation and my research and writing energy into developing law review essays based on the two papers I had conceptualized.
From the start, my interest in presidential deregulation was driven by my interest in business and business law, and the essays reflect that interest and bias. In the first essay, I set out to explore the ways in which a U.S. president may fulfill deregulatory campaign promises and objectives. As someone who [ahem] underachieved her potential (shall we say) in Constitutional Law in law school, I was challenged in this task from the get-go. But I persevered and learned a lot from the Constitution itself and the work of administrative law scholars. In the second essay, I aimed to make observations about what successful presidential efforts at deregulation look like by reviewing the perceived successes of the Trump administration's deregulatory initiatives to date. This inquiry resulted in some interesting--even if somewhat predictable--findings.
The first essay, Designing Deregulation: The POTUS's Place in the Process, was just released. You can find it here. The last two paragraphs of the abstract follows.
This essay interrogates the role of the president in deregulation at the federal level. The interrogation is designed to serve two principle goals. First, the essay sets out to identify and explain the president’s role in the deregulatory process from a legal and practical perspective. Second, with the knowledge gained in better understanding the nature of the president’s optimal role in deregulating, the essay offers a perspective and practical advice for use by a president in constructing and implementing a deregulatory agenda.
Ultimately, the essay suggests that the president assume the roles of change leader and fiduciary in meeting deregulatory promises and expectations. The role of change leader focuses the president on processes geared to foster lasting change; the role of fiduciary focuses the president on trustworthy conduct in a relationship with the public that allows for discretion yet demands accountability. The two roles are not mutually exclusive. They have the capacity to work together as complements.
Both this essay and the forthcoming one are limited-scope works. My hope is that by having invested time in attempting to understand the current deregulatory environment, my ongoing work in securities regulation and other federal regulatory environments will be enriched. Regardless, I have become a more educated consumer of presidential power and authority in the process of my research and writing. Perhaps my work in this area also will offer some of you a bit of new information or a novel idea that helps you in your work--or at least in social conversation--as deregulatory efforts progress.
[Postscript, April 29, 2019: In reviewing this post for a subsequent post, I noted that this post has the year of the Southeastern Association of Law Schools discussion group (entitled "Corporate and Financial Reform in the Trump Administration") wrong. It did, in fact, occur in 2017, and it therefore preceded the Association of American Law Schools conference discussion group also referenced in this post. My apologies for the error.]