Law and Custom on the Federal Open Market Committee

The Federal Open Market Committee (FOMC), which controls the supply of money in the United States, may be the country’s most important agency.1 The chair of the committee is often dubbed the second most powerful person in Washington, only deferring to the President himself.2 Financial scholars and analysts obsess over the institution, leading to a rich tradition of FOMC Kremlinology, veneration, and second-guessing in business schools and economics departments. But legal scholars have been less entranced by the committee—put off, perhaps, by the fact that the institution has never been checked by the courts or by the Administrative Procedure Act (APA).4 As a result, there has been no effort to come to grips with the administrative law of the FOMC; this article seeks to redress that gap. The FOMC enjoys a legal mandate that shields its discretion to a remarkable degree. The principal claim here is that this shield, combined with the imperatives of bureaucratic organization in an institution whose raison d’etre is stability, has turned the FOMC into an agency governed by internally developed tradition in lieu of externally imposed constraints. The makeup of the committee, the materials that it consults before rendering monetary policy decisions, its voting mechanisms, and the way its decisions are promulgated are products of a mélange of evolving tradition and statutory permissiveness. One might argue that some combination of law and tradition explains what happens in most agencies. But the degree of reliance on tradition sets the FOMC apart. No one worries about the customs governing evidence presentation and voting order on multimember boards like the Securities and Exchange Commission (SEC) or the National Labor Relations Board (NLRB), but they are subjects of scrutiny at the FOMC. By the same token, APA law, rather than traditions such as that of the FOMC’s so-called “beige book,” governs what goes into the record before, say, the EPA or Commerce Department make their factual findings.5 And Supreme Court decisions like Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co. mean that the decisions rendered by most agencies are substantially lengthier, and strive for substantially less ambiguity, than those of the FOMC.6 It is possible that this sort of development of routinized custom might be expected for agencies with few legal constraints. If so, the FOMC is a fine example of an institutional tendency, one that might have particular application in other forms of financial regulation. A mix of tradition and legal constraint are a feature of administrative constraint in that field, where litigation providing definitive opinions on required process is rare, and informal—and often nontransparent—oversight a norm. An account of the FOMC that jibes with the way this sort of regulation works might serve as a prod or a comparator for other accounts of the administrative law of financial oversight. Given this theme, the article makes the following additional points: 1. The FOMC enjoys the sorts of broad delegations that other New Deal agencies benefit from, only more so; the orders issued by the committee at the conclusion of each of its eight annual meetings do not fit within the traditional paradigms of administrative rulemaking or adjudication, leading courts to eschew any effort to review those decisions as committed to the agency’s discretion.7 2. Given its free hand, the FOMC might be expected to be an empire builder. But in reality, it has only expanded its remit with regard to the sort of transactions it takes on, which have moved beyond the purchase and sale of federal government debt to include positions in a broader range of financial assets, as the financial crisis exemplified. 3. The modest problems that the FOMC has endured at the hands of the branches that monitor independent agencies like it—the courts and Congress—have reflected its extraordinary independence and relative opacity. The courts have turned away a series of plaintiffs, including two senators, concerned about the breath of the delegation of power over the economy to the committee and the mechanism of appointment of committee members. Congress has occasionally fretted about the black box within which the committee makes its economy-changing decisions. However, in 1990, Congress removed legislation passed in the 1970s designed to require more reporting from the committee, suggesting that it, too, is cowed by the idea of subjecting the agency to much legislative oversight.8 4. The committee makes decisions in a procedurally consistent but increasingly lengthy and elaborate way. Simple correlations between the transcripts of these meetings (length, size, mood, number of times the chair spoke), the ultimate decision made by the FOMC, and a number of leading economic indicators found one intriguing relationship between attendance and the direction of the federal funds rate.9 There may be some promising research directions available for this sort of analysis. If the above observations are meant to make a descriptive case about the way the FOMC makes decisions, the question arises whether we should regret its distance from traditional sorts of administrative procedure. The FOMC’s procedural uniqueness is a function of its independence; that independence isjustly celebrated. We can live with the irregularities and experiments offered by the idiosyncratic procedures of financial regulation in general, and with the FOMC in particular, though comfort with the independence of the committee does not excuse unfamiliarity with the way it operates. It is accordingly worth determining how the FOMC does its business, and no scholar has yet done so. This lack of coverage by legal scholars of the rules and culture surrounding open market operations is not, to be sure, a terrible dereliction of duty. Administrative lawyers often assume that the subjects they study closely—rulemaking and adjudication by agencies—are quite different from other services provided by the government, including block grants, the management of state-owned enterprises, and, indeed, the oversight of interest rates. These lawyers do not necessarily claim that administrative scholarship should cover the entire waterfront of government action. Moreover, from a disciplinary perspective, although lawyers are very much engaged in financial supervision—that is, the way that the Federal Reserve (the Fed) regulates banks—they have little to do with either the decisionmaking by the FOMC, which expands or shrinks the nation’s monetary supply, or the implementation of its open market orders, which is done by the traders who staff the New York Fed’s open market operations desk. Although these are all good reasons not to place the scrutiny of the government’s open market operations agency at the top of every scholar’s agenda, they do not justify ignorance of the committee. Any lawyer interested in institutional design ought to be interested in the design of one of the government’s signature institutions; by the same token, knowing how law constrains the least rule-bound or adjudicatory of agencies essays an outline of the reach of these legal constraints. In part III of this article, the legal constraints of the FOMC are considered in the classical administrative law vein. As this article discusses, those constraints have not limited the discretion of the FOMC, which enjoys a remarkable degree of independence from Congress, the executive, and the judiciary. Nonetheless, the limitations on the freedom of committee members to do as they wish are reviewed to give the reader a comprehensive sense of how the law, as expressed by the actual practice of the courts and Congress, have constrained the agency. But the analysis of how the FOMC operates begins in part II, where the way that the constraints that do exist have affected the agency’s decisionmaking process is considered. A brief conclusion ends the analysis

Young Associates in Trouble

In the Shadow of the Law. By Kermit Roosevelt. New York: Farrar, Straus and Giroux. 2005. Pp. 346. 24. Utterly Monkey: A Novel. By Nick Laird. London & New York: Harper Perennial. 2005. Pp. 344. 13.95. Two recent novels portray the substantively unhappy and morally unfulfilling lives of young associates who work long hours in large, elite law firms. As it turns out, their search for love, happiness, and moral purpose is largely in vain. In the rarefied atmosphere of both fictitious firms, the best and the brightest while away their best years doing document reviews, drafting due diligence memoranda that no one will read, and otherwise presiding over legal matters with lots of zeros but precious little intrinsic interest. If this is what large law firm practice is like, the reader is bound to ask why large law firm jobs are so coveted. Is it really all about money? In this review essay, we compare Kermit Roosevelt\u27s and Nick Laird\u27s bleak portrayals with findings from a unique dataset on law firm profitability, prestige, hours worked, and various measures of several associate satisfactions. We also mine the findings of several empirical studies that track the experience of lawyers over time. We observe that higher firm profitability is associated with higher salaries, bonuses, and prestige. Yet, higher profits also have a statistically significant relationship with longer hours, a less family-friendly workplace, less interesting work, less opportunity to work with partners, less associate training, less communication regarding partnership, and a higher reported likelihood of leaving the firm within the next two years. Nonetheless, graduates from the nation\u27s most elite law schools tend to gravitate toward the most profitable and prestigious (and most grueling) law firms. The attraction of the most elite firms may be superior outplacement options. Or perhaps, as both novels intimate, it may stem from a reluctance to make hard life choices. The available empirical evidence suggests that success within the elite law firm environment often entails a difficult array of personal and professional trade-offs. Although we find our empirical data to be informative, the novel may be a particularly effective vehicle for examining the rather existential nature of these choices. Thus, we suspect that the accounts drawn by Roosevelt and Laird will resonate with many elite, large law firm lawyers

The Three or Four Approaches to Financial Regulation: A Cautionary Analysis Against Exuberance in Crisis Response

Unprecedented interest in financial regulation reform accompanies the nearly-unprecedented scale of financial calamity facing the world. Dozens of elaborate reform proposals are in circulation, most determined to revolutionize financial regulation. No doubt, the crisis makes reevaluation essential, but we contribute a cautionary analysis amid the exuberant atmosphere. Reforms should not discount the value of traditional financial regulation, overlook the functional regulatory reform that has already occurred, or overstate ultimate differences between contending reform proposals. Despite proliferation of dozens of reform proposals, our analysis leads us to conclude that there are ultimately only three or four principal alternatives: (1) the traditional fragmented model that divides power and presided over the generation of substantial wealth, yet signally failed to prevent the crisis of 2008; (2) the on-the-fly reforms effected by Treasury and Fed’s massive and unorthodox intervention into and extensive renovation of all financial services industries; and (3) seemingly radical proposals, one by Republicans at the onset of crisis (Treasury Secretary Paulson’s Blueprint), the other by Democrats after financial markets imploded (former Fed Chair Volcker’s Group of Thirty reports). These three or four alternative approaches pose tests of our relative commitments to markets, organization, globalization and political control. Although each was developed in different circumstances by architects with different purposes, they cannot co-exist. One of them will provide the approach we take into the next crisis - and perhaps to pull us out of the current one. We provide a framework to consider each alternative and evaluate their respective advantages and disadvantages. Our analysis leads us to conclude that limited reform is best, recognizing the quasi-centralization that has occurred and the need to add protective regulation to particular areas that manifestly contributed to the global economic crisis that began in 2008

Shining a Light on the Federal Reserve’s Foreign Affairs

Throughout its history, the U.S. Federal Reserve has engaged in international diplomacy, outside the bounds of (and sometimes in conflict with) the priorities of the White House and U.S. State Department. In directing monetary policy, the Fed’s primary concern is to benefit the U.S. economy. In the process, the Fed at times acts in concert with foreign central banks, as was the case in setting new bank regulations after the 2008 financial crisis. At other times, the Fed acts in ways that other countries view as detrimental to their economic interests. Either way, the Fed operates with little public accountability and can wind up complicating the work of U.S. diplomats. This issue brief focuses on the questions of whether and how greater oversight of the Fed’s international activities should be pursued. It recommends not an overhaul of the Fed’s structure or the elimination of its role in international affairs but instead calls for greater disclosure of its international activities. The Fed should provide testimony to Congress twice per year on its foreign policies, just as it does for monetary and regulatory policy. This kind of disclosure permits broader discussion of the Fed’s activities without eliminating the benefits of its institutional independence for monetary policy.https://repository.upenn.edu/pennwhartonppi/1063/thumbnail.jp

Consumer Protection in an Era of Globalization

With expanding global trade, the challenge of protecting consumers from unsafe food, pharmaceuticals, and consumer products has grown increasingly salient, necessitating the development of new policy ideas and analysis. This chapter introduces the book, Import Safety: Regulatory Governance in the Global Economy, a multidisciplinary project analyzing import safety problems and an array of innovative solutions to these problems. The challenge of protecting the public from unsafe imports arises from the sheer volume of global trade as well as the complexity of products being traded and the vast number of inputs each product contains. It is further compounded by the fact that as products move across jurisdictional boundaries regulators face a host of legal, cultural, and practical obstacles. We argue that import safety problems require rethinking domestic regulation, whether through improving the targeting of traditional government inspections, building stronger public-private partnerships, or making changes in products liability standards. International cooperation will also be needed but will be even more challenging. At every step in the supply chain, regulators face questions of what level of safety to aim for, what form of regulatory standards to adopt, and how compliance with such standards should be monitored and enforced – and yet different countries tend to answer these questions differently. This chapter not only raises the key questions regulators and the public confront in tackling a vexing global challenge, but it also previews Import Safety’s analysis of institutional capacity and a range of potential regulatory responses that can harness market actors to drive improvements in product safety

The Three or Four Approaches to Financial Regulation: A Cautionary Analysis Against Exuberance in Crisis Response

Unprecedented interest in financial regulation reform accompanies the nearly-unprecedented scale of financial calamity facing the world. Dozens of elaborate reform proposals are in circulation, most determined to revolutionize financial regulation. No doubt, the crisis makes reevaluation essential, but we contribute a cautionary analysis amid the exuberant atmosphere. Reforms should not discount the value of traditional financial regulation, overlook the functional regulatory reform that has already occurred, or overstate ultimate differences between contending reform proposals. Despite proliferation of dozens of reform proposals, our analysis leads us to conclude that there are ultimately only three or four principal alternatives: (1) the traditional fragmented model that divides power and presided over the generation of substantial wealth, yet signally failed to prevent the crisis of 2008; (2) the on-the-fly reforms effected by Treasury and Fed’s massive and unorthodox intervention into and extensive renovation of all financial services industries; and (3) seemingly radical proposals, one by Republicans at the onset of crisis (Treasury Secretary Paulson’s Blueprint), the other by Democrats after financial markets imploded (former Fed Chair Volcker’s Group of Thirty reports). These three or four alternative approaches pose tests of our relative commitments to markets, organization, globalization and political control. Although each was developed in different circumstances by architects with different purposes, they cannot co-exist. One of them will provide the approach we take into the next crisis - and perhaps to pull us out of the current one. We provide a framework to consider each alternative and evaluate their respective advantages and disadvantages. Our analysis leads us to conclude that limited reform is best, recognizing the quasi-centralization that has occurred and the need to add protective regulation to particular areas that manifestly contributed to the global economic crisis that began in 2008

The Federal Reserve\u27s Mandates

Solutions to systemic problems such as climate change and racial inequities have eluded policymakers for decades. In searching for creative solutions, some policymakers have recently thought about expanding the Federal Reserve’s core set of macroeconomic mandates to tackle these issues. But there are real questions about whether that can be done from a legal perspective and whether that should be done from a policy perspective

Consumer Protection in an Era of Globalization

With expanding global trade, the challenge of protecting consumers from unsafe food, pharmaceuticals, and consumer products has grown increasingly salient, necessitating the development of new policy ideas and analysis. This chapter introduces the book, Import Safety: Regulatory Governance in the Global Economy, a multidisciplinary project analyzing import safety problems and an array of innovative solutions to these problems. The challenge of protecting the public from unsafe imports arises from the sheer volume of global trade as well as the complexity of products being traded and the vast number of inputs each product contains. It is further compounded by the fact that as products move across jurisdictional boundaries regulators face a host of legal, cultural, and practical obstacles. We argue that import safety problems require rethinking domestic regulation, whether through improving the targeting of traditional government inspections, building stronger public-private partnerships, or making changes in products liability standards. International cooperation will also be needed but will be even more challenging. At every step in the supply chain, regulators face questions of what level of safety to aim for, what form of regulatory standards to adopt, and how compliance with such standards should be monitored and enforced – and yet different countries tend to answer these questions differently. This chapter not only raises the key questions regulators and the public confront in tackling a vexing global challenge, but it also previews Import Safety’s analysis of institutional capacity and a range of potential regulatory responses that can harness market actors to drive improvements in product safety

Tennessee Consumers' Views About Farmstead Milk

Packaging of fluid milks can serve as an initial market entry point for dairy farmers to enter into on-farm processing due to the product requiring less equipment and facilities investment than other dairy products. Understanding consumer preferences for milk that is produced and processed on-farm (farmstead) can aid in understanding the share of milk consumers who are interested in purchasing on-farm processed milk, the attributes of those most interested in the product to aid in target marketing, and consumers’ preferred outlets to purchase farmstead milk (FSM) which can assist in marketing the product. In addition, some dairy farmers may host visitors on-farm, either serving as an agritourism venue with educational tours about how milk is produced or on-farm stores to buy the processed milk. FSM is defined in this study as milk where the farmer produces the milk and then processes and packages on a Tennessee dairy farm. FSM may be sold directly to consumers at on-farm stores or farm stands, through farmers markets, through home delivery, or it may be sold by other sellers such as grocery stores, specialty stores or restaurants. The overall goal of this study is to provide a better understanding of Tennessee milk and dairy products consumers’ views about and preferences for FSM. Specific objectives of this study are to ascertain: a. prior knowledge about and purchases of FSM, b. interest in future purchases of FSM, c. how demographics vary across prior purchases and future interest in purchasing FSM, d. projected FSM purchases and expenditures among those interested in purchasing FSM, e. attitudes about on-farm produced and processed milk and dairy products, f. anticipated outlets where respondents would purchase FSM among those interested in purchasing it, and g. on farm purchases and visits by those interested in visiting a dairy farm