Recent uclalaw items

Private Military Firms, the American Precedent, and the Arab Spring

Fri, 16 Oct 2026 00:00:00 +0000

This essay, part of the Stanford International Law Journal’s symposium on the Arab Spring, examines the special role foreign military contractors have played (1) in deterring and helping suppress domestic uprisings across the Arab world and (2) in altering the trajectory of the military-contractor industry.

Running Government Like a Business... Then and Now

Fri, 16 Oct 2026 00:00:00 +0000

In Against the Profit Motive, Nicholas Parrillo takes us back to a time when the now-vast administrative state was just beginning to find its footing. The administrative state did so, Parrillo tells us, in large part by terminating what in essence was America’s last sustained romance with business-like government — a romance that united government service with the pursuit of profits.

Against the Profit Motive is a work of history, but this history has immense contemporary relevance. Of late, the specialness and legitimacy of the administrative state is increasingly challenged, discredited, and undermined amid calls to, once again, run government like a business. In light of contemporary American government’s widespread reliance on private, for-profit contractors to carry out public responsibilities, its reorientation of the public workforce to more fully respond to market pressures and incentives, and its effective ownership of automotive, insurance, and even venture...

Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers

Fri, 16 Oct 2026 00:00:00 +0000

The theory and reality of “administrative separation of powers” requires revisions to the longstanding legal, normative, and positive accounts of bureaucratic control. Because these leading accounts are often insufficiently attentive to the fragmented nature of administrative power, they tend to overlook the fact that internal administrative rivals — perhaps as much as Congress, the President, and the courts — shape agency behavior. In short, these accounts do not connect what we might call the old and new separation of powers. They thus fail to capture the multidimensional nature of administrative control in which the constitutional branches (the old separation of powers) and the administrative rivals (the new separation of powers) all compete with one another to influence administrative governance.

Connecting novel insights regarding administrative separation of powers to old — and seemingly settled — debates over the design and desirability of bureaucratic control,...

Privatization’s Pretensions

Fri, 16 Oct 2026 00:00:00 +0000

For decades, policymakers have been privatizing government responsibilities for the customary, and ostensibly exclusive, objective of providing the public with the same goods and services more efficiently. It is becoming increasingly apparent that these policymakers are also doing something different: they are using that purportedly technocratic process to substantively alter the very policies they are supposed to be neutrally administering. And, it is working: these privatization “workarounds” can directly change the content of public education, health, and social welfare programs, the outcome of regulatory enforcement and rulemaking proceedings, and the trajectory of police and national security operations.

Workarounds provide outsourcing agencies with the means of accomplishing distinct policy goals that – but for the pretext of technocratic privatization – would either be legally unattainable or much more difficult to realize. In short, they are executive aggrandizing....

Separation of Powers and Centripetal Forces: Implications for the Institutional Design and Constitutionality of Our National Security State

Fri, 16 Oct 2026 00:00:00 +0000

Today’s national-security state is increasingly highly concentrated, centralized, and consolidated across at least three dimensions: the public-private divide, the federal-state divide, and the political–civil servant divide within government agencies. Each of these dimensions of concentration, centralization, and consolidation has been individually examined. Yet notwithstanding careful study, there has been little appreciation of the potentially reinforcing effects of consolidation occurring along any two, let alone all three, of the relevant dimensions. That is to say, scholars and policymakers have generally zeroed in on only one dimension of consolidation at a time — and they have assessed the pros and cons of public-private, federal-state, or intra-agency consolidation against what they treat as an otherwise static backdrop.

This Essay insists that we need to think more capaciously and systemically — to take stock of all of the moving parts and gauge how they work...

The Organization for Economic Cooperation and Development's Role in International Law

Thu, 15 Oct 2026 00:00:00 +0000

The Organization for Economic Cooperation and Development (OECD) has played, and continues to play, an important and largely unrecognized role as a lawmaking body. The OECD occupies a unique space in the international lawmaking field, in large part because it was not established with lawmaking as a priority. In a small number of cases, however, it has played a significant role in crafting the emerging architecture of global governance. Case studies of the hazardous waste trade, the Bribery Convention, and the OECD Guidelines for Multinational Enterprises are presented to demonstrate a clear pattern. A topic of major concern arises on the international stage, such as hazardous waste trade, bribery, or corporate conduct. Efforts within the United Nations or other international organizations to draft an agreement are unsuccessful. The OECD proceeds on its own and provides an agreement that serves as the basis for future negotiations in fora with wider membership. The keys to this...

Authoritarian Populism and the Rule of Law

Thu, 15 Oct 2026 00:00:00 +0000

This essay, a revised and expanded version of my keynote address at the California Western School of Law’s 2026 Spring Symposium on the Rule of Law: A Global Examination of Government and Institutional Power, explores the relationship of authoritarian populism to the rule of law. Unlike its universal record of democratic backsliding and assaults on the separation of powers, there is a certain ambiguity in both the practice of authoritarian populist regimes and the literature on it with respect to this issue. While the ways in which such regimes are hostile to the rule of law are routinely and properly emphasized, some influential commentators have also identified and underscored their general legalistic approach to governance and preferred employment of procedurally valid forms of legal and constitutional change. Since these might be thought of as laudable, rather than nefarious, traits from a rule of law perspective, this seemingly bifurcated reality and analysis calls for...

Teaching Policy Instrument Choice in Environmental Law: The Five P's

Thu, 15 Oct 2026 00:00:00 +0000

While environmental law may appear dauntingly complex, and on occasion truly is, it turns out that understanding instrument choice can be straightforward. Perhaps surprisingly, there are only five basic policy instruments in play, and these can be effectively taught through a simple framework known as “The Five P’s.” Just as a complex sonata can be reduced to a small number of white and black piano keys, so can students’ mastery of the Five P’s allow them to identify the potential range of policy instruments at work in any statute. Despite their application across a dizzying range of situations, the basic environmental policy tools remain the same.

The Five P’s include Prescriptive Regulation, Property Rights, Penalties, Payments, and Persuasion. To be sure, this framework cannot perfectly capture the dizzying range of all environmental policy. The vast majority of instruments, however, do fit easily within the Five P’s framework. As a result, a teacher can easily share...

What is the Emperor Wearing? The Secret Lives of Ecosystem Services

Thu, 15 Oct 2026 00:00:00 +0000

Since exploding onto the scene in the late 1990s, the concept of ecosystem services has become immensely popular in environmental policy around the globe. Described in books, debated by scholars, taught in the classroom, lobbied for by environmental groups, adopted by the United Nations in its Millennium Ecosystem Assessment, and legislated in Congress, ecosystem services continue to generate significant excitement across the policy spectrum. Presented at Pace Law School as the annual Gilbert and Sara Kerlin Lecture, these remarks are offered from the perspective of someone who has been working in the field for over a decade. This piece takes a close look at why the concept of ecosystem services has enjoyed such rapid adoption in the policy world, whether the enthusiasm is justified, and where the field is going.

Climate Change Meets the Law of the Horse

Thu, 15 Oct 2026 00:00:00 +0000

The climate change policy debate has only recently turned its full attention to adaptation - how to address the impacts of climate change we have already begun to experience and that will likely increase over time. Legal scholars have in turn begun to explore how the many different fields of law will and should respond. During this nascent period, one overarching question has gone unexamined: how will the legal system as a whole organize around climate change adaptation? Will a new distinct field of climate change adaptation law and policy emerge, or will legal institutions simply work away at the problem through unrelated, duly self-contained fields, as in the famous Law of the Horse? This Article is the first to examine that question comprehensively, to move beyond thinking about the law and climate change adaptation to consider the law of climate change adaptation.

Part I of the Article lays out our methodological premises and approach. Using a model we call Stationarity...

Regulating Climate: What Role for the Clean Air Act?