The March 2023 run on Silicon Valley Bank spurred renewed debate about how to structure deposit insurance to best eliminate future bank runs. This Article argues, however, that deposit insurance cannot be relied upon to eliminate all bank runs, especially if technological developments create potential new bank run triggers that deposit insurance may not be […]
The public rightly considers the traditional banking system expensive, slow, and unfair. In response, technology companies have developed an ‘open banking’ sector. They combine transaction data from financial institutions with other datasets to develop applications for additional financial services, including personalized financial management and credit underwritten by data that credit bureaus have not historically collected, […]
This Essay considers the role of bankruptcy law in the legal ecosystem that regulates banks and other financial intermediaries. It uses the recent spate of bank and crypto intermediary failures to consider the role of bankruptcy courts (and other resolution institutions) in protecting both customers, and the stability of the financial system when the instability […]
The Federal Home Loan Bank system is a $1.3 trillion government-sponsored enterprise that operates primarily for the benefit of member financial institutions. Federal Home Loan Bank members enjoy generous dividends and ready access to fresh liquidity. The biggest beneficiaries are the biggest users of the system, including the largest banks and insurance companies in the […]
The source-of-strength doctrine is a long-standing pillar of bank regulation. It holds that a bank holding company (BHC) is to serve as “a source of financial and managerial strength” for its bank subsidiaries. The doctrine, however, has always been more aspirational than actual. The doctrine has never clearly imposed any liability on BHCs. Thus, it […]
This Article offers a conceptual framework for analyzing public banking as an institutional form of finance. It examines the key elements of design of a public bank as a financial institution―its core functions, sources of funding, asset structure, and governance framework―and highlights the opportunities and challenges presented by various choices along these dimensions. By isolating […]
Last week, the en banc Fifth Circuit, by vote of 9 to 7, issued an opinion holding that a provision of the Telecommunications Act of 1996 violates the nondelegation doctrine, creating a circuit split. The opinion spends four pages discussing my article A Critical Assessment of the Originalist Case Against Administrative Regulatory Power, 130 Yale L.J. 1288 (2021), and Philip Hamburger’s […]
I’ve never been a fan of Chevron. In particular, I didn’t like the game-playing around step one or all the confusion about step zero or step two. Mostly I disliked the rigidity of Chevron. Assuming textual ambiguity of the statute, deference to an agency’s interpretation is sometimes warranted, sometimes not. As a result, I prefer the Skidmore approach which grants weight to the […]
In November 2022, Attorney General Merrick Garland appointed Jack Smith as a special counsel to investigate former President Donald Trump’s attempts to stay in power after the 2020 election. Smith is currently prosecuting Trump in two separate cases, one in Washington, D.C., and the other in Florida. But the Florida prosecution was recently upended by Judge Aileen […]
Statutory mandates to establish minimum thresholds for hazards that pose an unquantifiable risk of harm put regulators in a bind. And the Supreme Court’s administrative law decisions this term have exacerbated the problem. Consider, for example, the FDA’s current struggle to regulate agricultural water quality. Fresh produce, once considered the healthiest of foods, has become a major […]
Chevron is dead, however deference may very well be alive. The majority in Loper Bright Enterprises v. Raimondo articulated no intelligible principle of deference other than tacit acknowledgement of Skidmore deference and potentially laying the path for de novo review. Nonetheless, some scholars have acknowledged that lower courts may function in fundamentally similar ways when […]
The Supreme Court’s recent decision in SEC v. Jarkesy seems destined to upend much federal regulatory enforcement. A further potential consequence may be coming for state enforcement. Whether state regulatory programs are vulnerable to a Jarkesy limitation depends on whether Jarkesy depends solely on the Seventh Amendment, or is a collaboration between the Seventh Amendment and Article III. Jarkesy dealt […]
Donald Trump thankfully survived an assassination attempt last weekend and may well win back the presidency in November. What constitutional theories might a second Trump administration advance? Trump himself has suggested one possibility: He has promised to assert a “Constitutional power to stop unnecessary spending through what is known as Impoundment.” In other words, a second-term President Trump would […]
Two weeks ago, the Supreme Court issued two major decisions concerning judicial review of federal agency regulations. Already, plenty of ink has been spilled praising and deriding the decisions. But to understand whether the decisions should make you gleeful or panicked, it is important to understand both their limits and their breadth. In Loper Bright Enterprises […]
Administrative agencies bear principal responsibility for keeping the federal government’s promises by giving effect in the real world to the laws Congress enacts. If administrative law’s goal was to help agencies fulfill this responsibility, its lodestar would be a thick concept of administration. But as a field, administrative law today neglects administration, focusing instead on […]