Curriculum Guide · Courses

Professor Buzbee

J.D. Seminar 1099 (cross-listed) | 2 credit hours

This seminar will focus on “the art of regulatory war.” How do lawyers and other stakeholders working at the regulatory intersection of law and politics gain advantage, use their different sorts of legal artillery and strength, and push regulatory disputes into venues, modes, and postures that favor their or their clients’ interests? What changes are underway regarding the nature of regulation and ways regulatory wars are fought?

Subject to adjustment in light of legal developments and student interest, the seminar meetings will be organized around either case studies or topics. Topic-based classes will likely select from among the following: federalism battlegrounds (including use of preemption to displace common law regimes, Supreme Court “New Federalism” jurisprudence, and rationales for federal or state roles); theories of regulation and regulatory reform proposals; the shift to market-based and experimental “rolling rule” modes of regulation; “sound science” and “bought science;” behavioral economics and regulatory design; and “impact” litigation strategies. Likely case study subjects will include several of the following: my own research into the 1971-85 battles over the multi-billion dollar Westway project defeated by a small number of citizens; climate change regulatory and legislative developments; tobacco regulation initiatives during the Clinton administration; offshore oil drilling and the BP oil spill; damage caps and tort reform (likely drawing on the Exxon Valdez post-spill history); consumer protection under the new financial reform law; and court, regulatory and legislative battles over protecting “waters of the United States” under the Clean Water Act. Readings will include diverse materials to illuminate the art of regulatory war, including court decisions, briefs, congressional testimony, trial transcripts, legislative and regulatory proposals, statutory provisions and scholarship. Students will have broad latitude to develop related paper topics and will likely end the semester by sharing and leading discussion of their papers. There are no seminar prerequisites, but students interested in constitutional law, economic and risk regulation, environmental law, administrative law, legislation, law and politics, law and economics, litigation and other areas of public law should find the material of interest.