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"Zaring, David"
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Securities regulation and administrative law in the Roberts Court
This Essay compares a judicial revolution that is happening to one that is not. Both the change and the status quo are being managed by the current Supreme Court. That Court has, when it comes to administrative law, shown a capacity to revisit everything. But when it comes to securities regulation, it has resisted change.
Journal Article
REASONABLE AGENCIES
THIS Article argues that the complex doctrine of judicial review of administrative action—containing no less than six separate tests depending on the sort of agency action to be reviewed—both descriptively is and normatively should be simplified into a \"reasonable agency\" standard. Courts, following step two of the Chevron doctrine, have started to sneak a reasonableness standard into their review in lieu of making the difficult distinctions required by current doctrine. Scholars evaluating the difference among the various doctrinal tests have started to note the increasing similarity among the tests, at least as applied by the courts. Empirical research, to which this Article contributes an additional study, suggests that regardless of the standard of review, courts affirm agencies' actions slightly more than two thirds of the time; the variance of the validation rates of agency action, regardless of the standard of review, is small. A reasonable agency standard would simplify and clarify administrative law, better describe what courts actually do when confronted with agency action, and better explain the judicial role in the administrative state.
Journal Article
LITIGATING THE FINANCIAL CRISIS
Two of the three branches of government responded to the financial crisis; this Article asks why the third one did not. The President and his Treasury Secretary organized bailouts of automakers, money market funds, and most of the large banks in the country. Congress passed rescue and stimulus statutes in the thick of the crisis and the Dodd-Frank Wall Street Reform Act after it.
Journal Article
Regulation by Threat: Dodd-Frank and the Nonbank Problem
A central lesson of the global financial crisis is that banks are not the only financial firms that can endanger the broader financial system. The Dodd-Frank Act responded to this reality by empowering a council of financial regulators to designate individual nonbank financial institutions as systemically risky. Although the Financial Stability Oversight Council (FSOC) has exercised this authority only four times, it has occasioned controversy in court, in Congress, and among commentators. And with Donald Trump's 2016presidential victory, FSOC's designation authority is now in danger of being radically altered or terminated completely. This Article defends the FSOC designation scheme, arguing that its critics misunderstand the mechanisms by which it helps to reduce systemic risk outside the banking sector. FSOC designation does not, and cannot, precisely identify firms that could pose a systemic risk to the financial system. FSOC's broad discretion to impose costly sanctions on designated firms instead advances two quite different goals. First, it deters nonbank firms from seeking out systemically risky strategies or activities. Second, it holds financial regulators to account by threatening to intrude on their regulatory turf if they fail to address systemic risk on their own. We term this approach \"regulation by threat\" and suggest that it is appropriate when risks are hard to identify, the perils of mistake are great, and the downsides of misdiagnosis extreme. Moreover, we argue that the council's discretion is better cabined by its structure—which features diverse membership, voting, review, and political safeguards—than by insistence on 'hard look\" judicial review or a cost-benefit requirement for individual designation decisions. The council offers a useful alternative mechanism to standard approaches to regulation.
Journal Article
The Corporatist Foundations of Financial Regulation
Banks are subject to heavy regulation that is secret, not justified by cost-benefit analysis, not reviewed by the courts, not constrained by congressional appropriations, and not responsive to the President. They nonetheless prosper under the regime. The fact that they do challenges some of the basic assumptions of American administrative law-that transparency and process creates better regulation through sunlight and reasoned decisionmaking, that judicial review checks regulatory abuses where sunlight and reasoned decision-making do not, and that a utilitarian assessment of the merits of regulation is essential. Instead, the banking regulators offer a different approach to administration-one that is collaborative and corporatist rather than adversarial and legalized. This Article shows how this model works, how it differs from the model of administrative law most often taught in law schools, and where else it can be found in government-in areas ranging from power supply to national defense to vaccine production. Collaborative administrative governance can work, but the banking variant of it would benefit by becoming a more transparent regulatory regime, where the precise nature of the collaboration, and the moments of adversarial separation between banks and government, are more obvious to all who wish to look. It means, among other things, that banks and nonbank interest groups should sue the government more, that the government should make public more of its dealings with banks, and that the international aspects of banking regulation should continue their journey toward greater transparency.
Journal Article
Skinny Charters: Rebuilding the Banking Regulatory Perimeter
One of the most controversial contemporary issues in financial regulation involves who should get access to a federal banking charter. Chartering was how regulators maintained a congressionally mandated separation between banking and commerce. Today, however, the regulatory perimeter barely exists--but it is not because of overweening banks using their balance sheets to manipulate their way into commerce, but the entry to nonbanks into banking.
Journal Article
Enforcement Discretion at the SEC
The Dodd-Frank Wall Street Reform Act allowed the Securities and Exchange Commission (SEC) to bring almost any claim that it can file in federal court to its own administrative law judges (ALJs). The agency has since taken up this power against a panoply of alleged insider traders and other perpetrators of securities fraud. Many targets of SEC ALJ enforcement actions have sued on equal protection, due process, and separation of powers grounds, seeking to require the agency to sue them in court, if at all. This Article evaluates the SEC's new ALJ policy both qualitatively and quantitatively, offering an in-depth perspective on how formal adjudication- the term for the sort of adjudication over which ALJs preside-works today. It argues that the suits challenging the SEC's administrative proceedings are without merit; agencies have almost absolute discretion as to whom and how they prosecute, and administrative proceedings, which have a long history, do not threaten the Constitution. The controversy illuminates instead dueling traditions in the increasingly intertwined doctrines of corporate and administrative law: the corporate bar expects its judges to do equity; agencies and their adjudicators are more inclined to privilege procedural regularity.
Journal Article
Toward Separation of Powers Realism
Many wonder if the separation of powers is going to he reinvigorated by the new appointees to the federal judiciary. But that doctrine in practice means that occasionally alarming, but exceedingly rare, doctrinal innovations- finding venerable parts of the administrative state or portions of high-profile congressional statutes to be unconstitutional, for example-make no real-world difference because of the modest remedies paired with those innovations. This Article shows how weak the separation of powers doctrines have become; explains how, in the rare case that the doctrines require a remedy, the remedy is almost never what the plaintiff seeks or a constraint on the administrative state; and analyzes why judges of every ideological stripe have turned away from the doctrine. It adds a comprehensive study of the past two decades of practice by the Supreme Court and D.C. Circuit to the existing literature and argues that we would be better off abandoning efforts to reinvigorate the functional versions of the doctrines.
Journal Article
The Federal Deregulation of Insurance
The efforts to get the federal government out of the business of regulating insurance have been comprehensive but not entire. The project offers two insights about deregulation and how to do it. The first insight is comparative. Given that courts, Congress, and agencies have all tried to undo the federal regulation of insurers, the higher quality of deregulation done by regulators themselves, as opposed to the other branches of government, is informative and makes out a story of comparative advantage when it comes to regulation. The second insight serves as a reminder of the stickiness of globalization. Because the federal government has made commitments to the European Union, it cannot entirely remove itself from the oversight of insurance, much as the policymakers in power today might wish to do so. Both insights make insurance a case study about the way that deregulation can work more generally.
Journal Article