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Abstract:
How should we understand the federal government's response to the financial crisis? The government's team, largely staffed by investment bankers, pushed the limits of its statutory authority to authorize an ad hoc series of deals designed to mitigate that crisis. It then decided to seek comprehensive legislation that, as it turned out, paved the way for more deals. The result has not been particularly coherent, but it has married transactional practice to administrative law. In fact, we think that regulation by deal provides an organizing principle, albeit a loose one, to the government's response to the financial crisis. Dealmakers use contract to avoid some legal constraints, and often prefer to focus on arms-length negotiation, rather than regulatory authorization, as the source of legitimacy for their actions, though the law does provide a structure to their deals. They also do not always take the long view or place value on consistency, instead preferring to complete the latest deal at hand and move to the next transaction. In this paper, we offer a first look at the history of the financial crisis from the fall of Bear Stearns up to, and including, the initial implementation of the Economic Emergency Stability Act of 2008. We analyze in depth each deal the government concluded, and how it justified those deals within the constraints of the law, using its authority to sometimes stretch but never truly break that law. We consider what the government's response so far means for transactional and administrative law scholarship, as well as some of the broader implications of crisis governance by deal.

Abstract:
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's and Nick Laird's 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's 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.

Law firms, Am Law 100, Am Law 200, Partnerships, Roosevelt, Laird

Abstract:
This article examines doctrines governing extraterritorial jurisdiction and their evolution in response to the forces of globalization. These doctrines were shaped in this century first by the shift from private law to public power that attended the rise of the regulatory state, and then by a particular concern with the rise of American power. The emergence of a globalized economy poses a new set of challenges and temptations likely to require a rethinking of the fundamental bases of extraterritorial jurisdiction. This article does not undertake that task, but examines the current state of US law on extraterritorial jurisdiction and discovery with an eye to future trends. It proposes that a number of current judicial decisions are best analyzed not as definitive assertions of government power but rather as interim efforts to ascertain the nature and intensity of a foreign government?s preferences. Further, it examines the temptation to use courts as tools of foreign policy, insisting on the need to distinguish between unilateral foreign policy objectives and cooperative or coordinated transnational legal solutions to global problems. Finally, it argues that globalization poses a problem of deciding when national actors can legitimately escape national regulatory obligations by moving offshore. Efforts to address this issue may portend a synthesis of the doctrinal tests applicable to ascertain the scope of regulatory jurisdiction with respect both to foreign entities acting in or with an effect on national territory and domestic entities acting abroad.

Abstract:
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.

financial regulation, regulatory reform, financial crisis, regulatory competition, regulatory conentration, Treasury blueprint, Volcker reports

Abstract:
This literature review asks three questions of the scholarship on the regulatory networks that have so far transformed global governance. First, what are these networks good for? We summarize the state of the literature on regulatory races, the fit between networks and the process of globalization, and the crucial role of the revolution in communications in the development of networks, introducing the topics with a brief intellectual history of regulatory network analysis in international relations and international law scholarship. Second, we examine how we can make sure that regulatory networks are good by asking this question: How might necessary and appropriate accountability mechanisms for the networks be constructed? The answers to these questions are at the foundation of a global administrative law, which is itself the subject of a burgeoning scholarly literature. Our third question concerns the way regulatory networks fit into a world where traditional intergovernmental relations and formally constituted international organizations are still important. We conclude by identifying different ways in which networks and international organizations can complement each other and by spotlighting questions for future research.

transgovernmentalism, regimes, international relations, international law

Abstract:
This article adds an empirical perspective to the debate over the use of foreign authority by federal courts. It surveys sixty years of federal court practice in citing opinions from foreign high courts, through a citation count analysis. The data reveals that federal courts rarely cite to foreign decisions, they do so no more now than they did in the past, and on those few occasions where they do cite to foreign decisions, it's usually not to help them interpret domestic law. Instead the citation of foreign decisions is best understood as a relatively rare phenomenon of judicial dialogue in cases where international issues are squarely presented by the facts. The article examines those few cases where federal courts have cited foreign decisions in some detail, and briefly considers some implications of the limited use of foreign decisions by federal courts.

Abstract:
Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court’s use of a particular interpretive technique – namely, the use of legislative history to determine the purpose and meaning of a statute. We analyzed every opinion in every Supreme Court statutory interpretation case from 1953 through 2006 that involved a frequently interpreted federal statute. We also collected original data on the characteristics of each statute, including its age, length, complexity, obscurity, and the number of times that it had been amended. We then used logit regression analysis to evaluate the impact of these characteristics, as well as the ideological tilt of the justices and their opinions, on the likelihood that a justice would cite legislative history in a given opinion.

We find overall that the use of legislative history is driven by a combination of legal and ideological factors. On the whole, the legal variables have a significantly larger impact on the likelihood of legislative history usage than the ideological variables, but the impact of the ideological variables cannot be dismissed. Statutes that are longer or more complex increase the likelihood of legislative history usage, whereas frequent amendment of a statute decreases that likelihood. The age of the statute also matters, but its effect is neither linear nor monotonic: very new and very old statutes are more likely to elicit legislative history usage than statutes of intermediate age. Majority opinions are significantly more likely to cite legislative history than dissenting opinions, which are in turn more than twice as likely to cite legislative history as concurring opinions. The evidence also suggests that the use of legislative history by one justice prompts other justices to respond in kind with legislative history arguments of their own.

With respect to the impact of ideological factors, liberal justices are generally more likely than conservative justices to cite legislative history. We found no support, however, for the proposition that justices use legislative history instrumentally in order to reach their ideologically preferred outcomes: legislative history usage does not affect the likelihood that a justice will arrive at his or her preferred outcome. Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal justices who were inclined to cite legislative history have been replaced by conservative justices who are not inclined to do so.

Abstract:
Informal international regulatory cooperation is changing into recognizable forms of international administration. This paper surveys some of those forms. The forms range from hard procedural law to soft harmonization-through-example. They include: 1) hard international rules that constrain institutions in developed countries; 2) softer principles of supervision which bureaucrats in developing countries may emulate; and 3) models for regulators in adjacent issue areas. It is in attempting to adopt hard rules that we see an escalating procedural formality to regulatory cooperation. We also see a softer proselytization of unobjectionable, easy (for already sophisticated regulators, at least) standards throughout the developing world. Finally, the horde of organizations that have copied the form and agendas of established regulatory cooperation mechanisms also play a part in emerging international administration. The principal case studies for the paper come from international financial regulation.

International Administration

Abstract:
In traditional administrative law, agencies pass rules and courts review them. But what if agencies stopped acting by rule and started leading by example? With best practices rulemaking - a theoretically voluntary way of coordinating administrative action both within and across agencies - leading by example is what agencies are increasingly doing. Although best practice rulemaking has been ignored by the legal literature, regulation through best practices has increased sevenfold in the past ten years in the federal government alone, touching every aspect of administrative law.

This paper describes and evaluates best practices rulemaking, tracking its origins in business management, its adoption by the public sector, and analyzing how it works in that sector, through a series of case studies. Although best practices purport to be best, there is nothing particularly best about them. The rulemaking technique is a way of obtaining common practices, not ideal ones. Accordingly, best practices rulemaking is therefore particularly useful when we want agencies to coordinate, but don't care much about the standard of coordination that they adopt. The paper concludes with a consideration of the future of best practices. As best practices rulemaking, along with other forms of horizontal, informal agency action, continues to grow, and grow apart from judicial supervision, Congress may ultimately wish to point the way to appropriate publicity and forms of consultation through an Informal Administrative Procedure Act.

Abstract:
Administrative law has been transformed after 9/11, much to its detriment. Since then, the government has mobilized almost every part of the civil bureaucracy to fight terrorism, including agencies that have no obvious expertise in that task. The vast majority of these bureaucratic initiatives suffer from predictable, persistent, and probably intractable problems - problems that contemporary legal scholars tend to ignore, even though they are central to the work of the writers who created and framed the discipline of administrative law.

We analyze these problems through a survey of four administrative initiatives that exemplify the project of sending bureaucrats to war. The initiatives - two involving terrorism financing, one involving driver licensing, and one involving the adjudication of asylum claims - grow out of the two statutes perhaps most associated with the war on terrorism, the USA PATRIOT Act of 2001 and the REAL ID Act of 2005. In each of our case studies, the civil administrative schemes used to fight terrorism suffer from the incongruity of fitting civil rules into an anti-civil project, the difficulties of delegating wide discretion without adequate supervision, and the problem of using inexpert civil regulators to serve complex law enforcement ends. We conclude that anti-terrorism should rarely be the principal justification for a new administrative initiative, but offer some recommendations as to when it might make sense to re-purpose civil officials as anti-terrorism fighters.

national security, terrorism, war on terror, administrative law, administrative agencies, USA PATRIOT Act, REAL ID Act, sanctions, banking, IEEPA, OFAC, Treasury, Homeland Security, immigration, asylum, DMV, drivers license, FinCEN, money laundering

Abstract:
This article posits that the creation and development of international regulatory regimes has so far required a choice between rulemaking and adjudication. Regulators that wish to make policy broadly and prospectively have done so informally and through rules. More elaborate and powerful regulatory regimes, however, have tended to feature the creation of an adjudicator. This choice of policymaking form has important, but often overlooked, procedural consequences. Choice of form affects the effectiveness, flexibility, accountability, and transparency of an international regulatory regime. The article examines three characteristic ways that international regulators make rules. For adjudication, it introduces three tribunals that exemplify that process. It concludes with recommendations that would help to increase the formality of the new breed of international rulemakers, and conversely increase the flexibility of the new set of international tribunals.

Rulemaking, Adjudication, International Law, Regulatory Regimes, Adjudicator, Principles-Based Regulation, ICSID

Abstract:
Institutional reform lawsuits - big cases involving the structural reform of local government entities such as prisons and housing authorities - have traditionally been analyzed in two ways: either as unique exercises of judicial power or as party-driven examples of small-scale government by negotiation. To these traditional descriptive approaches, this article adds a third. If examined through a wider lens, institutional reform litigation has national, systemic implications, and, indeed, can create uniform federal law. This law is not imposed vertically, by appellate tribunals, but rather spreads horizontally, from trial court to trial court, like nodes in a nationwide network.

The article accordingly focuses on the structural character of institutional reform litigation from a national perspective. As it turns out, the system operates through information exchanges by repeat players who participate in multiple institutional reform cases, most commonly as counsel or expert witnesses, but also as parties (or, occasionally, judges) involved in multiple lawsuits. These participants facilitate the adoption of common standards by preferring familiar remedies, by valuing interoperability between cases, and by succumbing to the inertial momentum that these preferences, when placed in the context of the system, can create. The result is a different kind of law, one low on reasoned elaboration and high on best-practices-style copying.

The article describes the phenomenon and analyzes it through two qualitative case studies. It also reviews the prior literature on institutional reform litigation and compares the network to other examples of regulatory standardization from below. Although principally descriptive, the article concludes with a brief evaluation of the implications of ad hoc standardization through trial court litigation.

institutional reform litigation, civil procedure, public housing, prisons, trial courts, structural injunctions

Abstract:
The new prominence of constitutional tort claims like Valerie Plame's and Jose Padilla's calls for a re-examination of the form, a basic, but often overlooked, kind of lawsuit. This essay divides constitutional tort claims into three different types, each with different purposes and different kinds of plaintiffs, and each with different implications for the regulation of government policy. It also makes the case for the continuing, if uneasy, relevance of the form, despite its often belabored, but certainly justified, reputation for hostility towards plaintiffs.

Constitutional torts do not always fail in every way, or in the same ways. To be sure, there are the pro se and quasi-pro se cases that always lose. But there are also the excessive use of force cases that sometimes do not lose. And, increasingly, there are the policy-related strike suits against senior federal officials where liability, in the end, is not the point. After trifurcating the constitutional tort, the paper seeks to explain why it remains interesting, and draws some larger conclusions about the evolution of the Bivens suit, which increasingly looks like a new, albeit problematic, locus of the old impulse towards institutional reform litigation, and an increasingly-resorted-to alternative to lawsuits under the Administrative Procedure Act.

Abstract:
This article examines doctrines governing extraterritorial jurisdiction and their evolution in response to the forces of globalization. These doctrines were shaped in this century first by the shift from private law to public power that attended the rise of the regulatory state, and then by a particular concern with the rise of American power. The emergence of a globalized economy poses a new set of challenges and temptations likely to require a rethinking of the fundamental bases of extraterritorial jurisdiction. This article does not undertake that task, but examines the current state of US law on extraterritorial jurisdiction and discovery with an eye to future trends. It proposes that a number of current judicial decisions are best analyzed not as definitive assertions of government power but rather as interim efforts to ascertain the nature and intensity of a foreign government s preferences. Further, it examines the temptation to use courts as tools of foreign policy, insisting on the need to distinguish between unilateral foreign policy objectives and cooperative or coordinated transnational legal solutions to global problems. Finally, it argues that globalization poses a problem of deciding when national actors can legitimately escape national regulatory obligations by moving offshore. Efforts to address this issue may portend a synthesis of the doctrinal tests applicable to ascertain the scope of regulatory jurisdiction with respect both to foreign entities acting in or with an effect on national territory and domestic entities acting abroad.