Transactional Administration

42 Pages Posted: 23 Feb 2017 Last revised: 5 Jul 2018

See all articles by Steven Davidoff Solomon

Steven Davidoff Solomon

University of California, Berkeley - School of Law; University of California, Berkeley - Berkeley Center for Law, Business and the Economy; European Corporate Governance Institute (ECGI)

David T. Zaring

University of Pennsylvania - Legal Studies Department

Date Written: February 21, 2017

Abstract

The Trump administration has promised to pursue policy through deals with the private sector, not as an extraordinary response to extraordinary events, but as part and parcel of the ordinary work of government. Jobs would be onshored through a series of deals with employers. Infrastructure would be built through joint ventures where the government would fund but private parties would own and operate public assets.

We evaluate how this dealmaking state would work as a matter of law. Deals were the principal government response to the financial crisis, partly because they offered a just barely legal way around constitutional and administrative barriers to executive action. Moreover, unilateral presidential dealmaking epitomizes the presidentialism celebrated by Justice Elena Kagan, among others. But because it risks dispensing with process, and empowers the executive, we identify ways that it can be controlled through principles of transparency, rules of statutory interpretation, and policymaking best practices such as delay and equivalent treatment of similarly situated private parties.

Keywords: Administrative Law, Mergers and Acquisitions, Separation of Powers, Corporate Law

Suggested Citation

Davidoff Solomon, Steven and Zaring, David T., Transactional Administration (February 21, 2017). Georgetown Law Journal, Vol. 106, No. 4, 2018, UC Berkeley Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=2921407 or http://dx.doi.org/10.2139/ssrn.2921407

Steven Davidoff Solomon

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

University of California, Berkeley - Berkeley Center for Law, Business and the Economy ( email )

Berkeley, CA 94720-7200

European Corporate Governance Institute (ECGI) ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

David T. Zaring (Contact Author)

University of Pennsylvania - Legal Studies Department ( email )

3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States

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