The Privatization of Law & the Weakening of Private Right

Law promises much but does not always deliver. It promises due process, equal protection, equity, and personal autonomy—but many individuals leave litigation uncured. The trend in recent years has been increasing privatization of law coupled with diminution of private right. This paper explores ways to secure private rights despite privatization of law by enhancing the rigor of judicial review of state action. Law is one of several social systems operating in an environment of limited resources. Access to oil and gas is, today, more controversial, difficult, and expensive than ever before because of increased environmental regulations created under the Obama Administration. Those regulations are currently under review by President Trump and some will be reversed. The easiest to extract oil and gas is long gone, but because the economy depends on energy, it is essential that a policy in support of economic development be crafted. Environmental law regulations are necessary to protect the environment, but they do make extraction of energy resources difficult and costly. The privatization of law in oil and gas land use development is analyzed through the lens of takings. The result is public law positioned against private rights. The failed-now-revived Keystone XL and Dakota Access Pipeline projects provide useful lessons in the development of administrative and takings law, judicial review, delegation, and separation of powers