Toward Separation of Powers Realism

Many wonder if the separation of powers is going to be 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

Sovereignty Mismatch and the New Administrative Law

In the United States, making international policymaking work with domestic administrative law poses one of the thorniest of modern legal problems—the problem of sovereignty mismatch. Purely domestic regulation, which is a bureaucratic exercise of sovereignty, cannot solve the most challenging issues that regulators now face, and so agencies have started cooperating with their foreign counterparts, which is a negotiated form of sovereignty. But the way they cooperate threatens to undermine all of the values that domestic administrative law, especially its American variant, stands for. International and domestic regulation differ in almost every important way: procedural requirements, substantive remits, method of legitimation, and even in basic policy goals. Even worse, the delegation of power away from the United States is something that our constitutional, international, and administrative law traditions all look upon with great suspicion. The resulting effort to merge international and domestic regulatory styles has been uneven at best. As the globalization of policymaking is the likely future of environmental, business conduct, and consumer protection regulation—and the new paradigm-setting present of financial regulation—the sovereignty mismatch problem must be addressed; this Article shows how Congress can do so

Regulating Banking Ethics: A Toolkit

There is little doubt that culture matters for institutions—entities ranging from economics departments to soccer teams spend plenty of time thinking about the cultures they hope to foster—and that culture is also exceedingly hard to measure or define. Regulators now have had a decade since the financial crisis to operationalize their approach to guiding and improving the ethics and culture of the banks they oversee. Understanding what they have chosen to do makes it easier to assess the value of the effort to make cultural transformation an important part of a regulatory program. It also offers lessons to the broader world of public administration, where some agencies, such as environmental regulators, have not made a culture of compliance a priority, while others—securities regulators come to mind—have tried to do more to make certain values stic

Personal Liability as Administrative Law

Administrative Law has almost exclusively concerned itself with Lawsuits against agencies as collective entities, under the auspices of the Administrative Procedure Act. In light of the growing number and prominence ofsuits by war on terror plaintiffs against senior government officials, this Article considers the use ofpersonal liability to discipline government officials and assesses it as an alternative to traditional administrative Law. It compares the civil suits to criminal prosecutions of these officials and compares both of them to lessobviously Law related scandal campaigns. Personal sanctions--of which Bivens complaints are a principal example-are worth more attention. These mechanisms, and the constitutional tort in particular, are case studies of the popular inclination to decentralize government, of the value ofsymbolic Laws, and, increasingly, of the personalization of Law and politics. Solving some of the problems ofpersonal liability, as it works today, might best be done not by enhancing the bite of the always-challenged Lawsuits and prosecutions, but by making sure that the Law makes it more possible for political cases to be made against government officials, rather than legal ones

Modernizing the Bank Charter

The banking charter—the license a bank needs to obtain before it can open—has become the centerpiece of an argument about what finance should do for the rest of the economy, both in academia and at the banking agencies. Some advocates have proposed using the charter to pursue industrial policy or to end shadow banking. Some regulators have proposed giving financial technology firms bank charters, potentially breaking down the traditionally high walls between banking and commerce. An empirical survey of chartering decisions by the Office of the Comptroller of the Currency suggests that chartering is best understood as an ultracautious licensing regime for “fit and proper” applicants. It would not and probably should not be easily adapted to realize the policies the advocates propose, or to mix banking with big business. The modern charter should be paired with more transparent administration by agencies and more standard review by courts. These policies could appropriately be paired with the careful and narrow fintech chartering program that regulators have created

Regulatory Cooperation and the Trump Administration

regulatory cooperation, regulatory harmonization, administrative la

Informal Procedure, Hard and Soft, in International Administration

Administration has, in many of its most important subject areas, become internationalized. This transformation has removed the regulation of goods and services from domestic rulemaking and transformed it into a matter for supranational agreement. It has taken review away from the courts and made administration an exercise in bureaucratic collaboration. And it has occurred quiedy-not through laws passed by legislatures, treaties agreed to by executives, or mandates lain down by international organizations such as the United Nations. Instead, the internationalization of regulation has happened informally, and the primary impetus for its development has been domestic bureaucracies themselves. Even though areas of rulemaking that affect millions of people have changed, the phenomenon, as a form of procedure, remains largely unexamined. It is not a part of administrative law syllabi, nor is it taught in many international law courses. Scholars have examined particular areas of harmonization with an eye to their substance while neglecting their process, and efforts to look at global administrative practice as a coherent body of lawmaking are still nascent. As for international lawyers, they now recognize that this bureaucratic collaboration exists and have sensed its potential. But they have not drawn any confident conclusions about how the organizations might evolve. In this article, I seek not just to site regulatory cooperation in the framework of international rulemaking, but also to identify the direction in which this cooperation might be going. I go into detail about the types of rules generated by the phenomenon, and I analyze some of its successes. I also identify the real problems with the phenomenon. The problems do not lie, as many observers have argued, with a democratic deficit and a bias in favor of the United States-at least not as those problems are usually defined. Rights of participation in informal international rulemaking are afforded rather broadly across the First World. However, developing countries enjoyed much more limited access, and it is in the developed/developing divide that informal regulatory cooperation is at its perhaps most problematic. [CONT