Showing papers in "Harvard Law and Policy Review in 2009"

Abstract: This article considers the financial panic of 2008 in historical context by analyzing the institutional and regulatory factors that contributed to the financial and economic crisis. The move away from a Keynesian regulatory model was a function of larger institutional flaws. The Keynesian regime of command-and-control regulation focused on macroeconomic policy objectives designed to achieve full employment, more equitable distributions of wealth and income, greater transparency in the regulatory process, and reduction in monopoly exploitation of consumers. Central to this regime was a model of central banking that required greater accountability to elected branches of government and the use of selective credit controls to complement general monetary policy measures. As the Federal Reserve (the Fed) became increasingly subject to agency capture by its private financial constituencies, it also became a leading force behind the deregulation of interest rates and lending standards, and the adoption of risk-based capital requirements. These trends, in turn, undermined the transparency of financial institutions and markets, and encouraged the development of an unsustainable, bubble economy. The privatized Federal Reserve System represents a profound rule-of-law failure that is reflected in today’s bailout model which socializes losses and privatizes gains for “too big to fail” financial institutions. This captured Fed represents a significant impediment to effective financial regulation and a proper balance of constitutional authority on monetary and fiscal policymaking between elected and appointed branches and private actors. This article recommends reviving the model of institutional law and Keynesian economics by suggesting a more complete and integrated approach to financial regulation that would keep competition within prescribed limits while allocating credit and capital away from private, speculative activity and into longer-term public investment in physical and social infrastructure. A necessary precondition is reform of the Fed’s institutional structure to safeguard monetary policy and financial regulation from a self-serving financial industry.

Abstract: Water has long deeply resonated with Americans, especially in less humid parts of the country. Most do not regard it as just another commodity, or indeed as just another natural resource.2 Today our management and use of water face a fundamental challenge. Current patterns of water use, and the enormous infrastructure built to support them, are based on historic climate patterns as we have understood them, but a near-consensus among climatologists holds that our hydrologic future will not simply mimic the past.3 Parts of the nation are likely to see longer, steeper droughts and higher temperatures that could lead to more rain, less snow, earlier spring runoff, higher evaporation rates, and increased demand for water.4 Also, because of the historically tight connection between water and energy use, a carbon-sensitive energy policy will implicate water use, and vice versa.5 A destabilized

Abstract: Blue state federalism is at a crossroads. The reason? Progressives advocating for more state and local policymaking power may have been too successful for their own good. In the eyes of many, the 2006 congressional elections, in which Democrats made major gains in the House and Senate, presaged the transformative election of November 4, 2008. But the roots of this seemingly seismic shift in American politics may be traced back even further—to the work done over the last eight years in state houses and city councils across the country. As the two essays presented in this volume amply demonstrate, on issue after issue over this period of time, it was state and local leaders who often took the lead in proposing creative, progressive responses to the nation’s most pressing problems. And, on issue after issue, it was national government actors who often stepped in to thwart them. The subprime crisis? Many state and local governments were relatively quick to crack down on predatory lending,1 but they soon found the nation’s Comptroller of the Currency standing in their way.2 Climate change? A coalition of states and cities came together to compel the Environmental Protection Agency to do something about greenhouse gas emissions,3 and they also took steps towards adopting a sub-national climate change regulatory structure all on their own. But here too, the feds sought to snuff out such bottom-up action, either by claiming the states and cities had no right to force federal government action or by asserting the authority to block these states and cities from acting independently.4 Health care? The federal government did little to address the growing rolls of the uninsured. In response, states and localities began to develop their own systems for providing coverage to those who lacked it, all the while running the risk that federal courts would strike down such efforts for conflicting with federal law.5 Lax over-

Abstract: Has originalism won? It’s easy to think so, judging from some of the reaction to the Supreme Court’s recent decision in District of Columbia v. Heller.1 The Heller Court held that the District of Columbia could neither ban possession of handguns nor require that all other firearms be either unloaded and disassembled or guarded by a trigger lock. In finding for the first time in the Court’s history that a gun control law violated the Second Amendment, Justice Scalia’s opinion for the 5-4 majority appeared to be a sterling exemplar of originalism, the method of constitutional interpretation that he has helped to popularize. More surprising to most observers, the dissenting opinion of Justice Stevens also seemed to be in the originalist tradition.2 Hence the claim advanced by some in the decision’s wake that “we are all originalists now.”3 If that claim is true, it is profoundly important to the future of constitutional law. Originalists believe that judges generally should prioritize the original understanding of constitutional provisions over contemporary understandings that avail themselves of social and intellectual progress. Since this is not how constitutional law has been made for much of our history, a serious commitment by the Supreme Court to originalism would destabilize some of our most familiar and cherished political traditions. If the claim is not true, then constitutional lawyers, particularly progressives, must take care to separate the rhetoric of originalists from the impact of originalism on actual constitutional cases.

Abstract: In the United States today, incarceration is more than just a mode of criminal punishment. It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills. In this essay, I argue that this emergent carceral system has become self-generating - that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand. I argue, moreover, that this reproductive process works to create a class of permanently marginalized and degraded noncitizens - disproportionately poor people of color - who are marked out by the fact of their incarceration for perpetual social exclusion and ongoing social control. This essay serves as the Foreword to a symposium in the Harvard Law & Policy Review addressing the costs of mass incarceration.