Showcase Panel IV: Control of the Bureaucracy 2:30 p.m. – 4:15 p.m. State Room
Prof. Geoffrey P. Miller, Stuyvesant P. Comfort Professor of Law, Director, Center for the Study of Central Banks and Financial Institutions, New York University School of Law
Annual Rosenkranz Debate and Luncheon: Statutory Interpretation
RESOLVED: The United States Constitution Requires Federal Courts to Interpret Statutes as Honest Agents of the Enacting Congress Saturday, Nov. 14
12:30 p.m. – 2:30 p.m. Grand Ballroom
Hon. Guido Calabresi, U.S. Court of Appeals, Second Circuit
Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit
Moderator: Prof. John F. Manning, Bruce Bromley Professor of Law, Harvard Law School
Easterbrook
Calabresi
Manning-
25 years ago, statutory interpretation was not very important, and received little attention. This topic source of energetic debate. Intentionalists an Purpovists and Textualists
Defend the proposition when interpreting statutes judges should be honest agents of the enacting legislature. Fiathful application of statutes part of our heritage from UK: “judicial power in Article III”
Take care that the laws be “Faithfully” executed. Judges cannot be allowed to depart from faithful execution when the Executive cannot.
The real question: Faithful to the enacting legislature, or to the sitting legislature? Later enacted statues and treat earlier statues as part of common, if not statutory law. (Common law in the age of statues- Calabresi)
1. Our Constitution makes certain procedures essential to law. Majority vote, both houses must enact same text during same session, President must give assent unless override veto. Terms limited to 2, 4,6 years. Judges can’t conceive of legislatures as in perpetual tenure. Only what officials do during their term counts as law. opinion poll is not law, even if poll is 100% sure represents legislature law. West VA v. Casey, litigant argues that if Congress thought of this in 1871, they would have thought of shifting of expert fees. Justices though this exercise illegitimate. Judges are not authorized to engage in this exercise.
Stevens, J. dissent: ” The fact that Congress has consistently provided for the inclusion of expert witness fees in fee-shifting statutes when it considered the matter is a weak reed on which to rest the conclusion that the omission of such a provision represents a deliberate decision to forbid such awards. Only time will tell whether the Court, with its literal reading [n.19] of 1988, has correctly interpreted the will of Congress with respect to the issue it has resolved today.”
THe only will of Congress taht counts is will htat satisifes bicamerlaism and presentment requirements
2. Limiting interpretation to enacting congres. Clauses enacted as package. Arguments that today’s congress would do X, considers that Legislatures would act in that exact way. But if proposal has support, someone always adds amendment. E.g., Stupak Amendment.
Civil Rights of 1991. Justices were sure legislature would overturn the law. Act also changed some decisions that favored plaintiffs, set caps on damage awards. Pro-worker provisions could not have been passed by pro-employer. Any prediction by Judge on one issue would not consider resolution of other issues.
3. Judicial attempts to predict what congress will do is difficult.
Illinois Brick Company v. Illinois, Brennan predicted in dissent Congress would change law, so the Court should allow the law to change without having the Bill go through congress.
“When a Judge says I’m confident today’s congress will propose X, it really means, I favor X”
Administrative Law: Breakdown of the Public-Private Distinction: Implications for the Administrative State Saturday, Nov. 14 10:45 a.m. – 12:15 p.m. Chinese Room
Mr. David Berenbaum, Executive Vice President, National Community Reinvestment Coalition
Mr. David G. Leitch, Group Vice President and General Counsel, Ford Motor Company
Prof. J.W. Verret, Assistant Professor of Law, George Mason University School of Law
Prof. David Zaring, Assistant Professor of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania
Moderator: Hon. Ronald A. Cass, President, Cass & Associates, PC
Leitch
Public Corporations regulated by public agencies
Basic regulatory model subject to a variety of regulations that blur line between public and private
First widespread use of government corporations came during WWI, Great Drepression, and WWII
WWII, 58 Gov corporations
Government Corporation Control Act cut back on number of gov corporations and increased transparency and accountability
Government appointed boards of directors. Some designated agencies of United States, some not.
Some owned or controlled by the government.
Line has blurred.
GM & TARP. GM Financial Institution within meaning of TARP.
GM Bailout done on “thinnest of legal reads.” It was rushed and minimal debate.
Executive only stepped in after House bill died.
Clear example of raw executive power with no discernible power.
Looking forward, no guidance in law from government’s ownership of GM. How should gov manage GM? What are rights and duties? Should goal be to maximize taxpayer recover?
This is not the rule of law, but extreme deference to the executive.
Showcase Panel III: Regulation of Financial Institutions
Saturday, Nov. 14
9:00 a.m. – 10:30 a.m. Grand Ballroom
– Hon. Paul S. Atkins, Congressional Oversight Panel and Former U.S. SEC Commissioner – Ms. Stephanie R. Breslow, Partner, Schulte, Roth & Zabel LLP – Dean Paul G. Mahoney, David and Mary Harrison Distinguished Professor of Law, Arnold H. Leon Professor of Law, University of Virginia School of Law – Hon. Annette L. Nazareth, Partner, Davis Polk & Wardwell LLP – Moderator: Hon. Edith H. Jones, U.S. Court of Appeals, Fifth Circuit
“If it moves, tax it. If it moves too fast, regulate it. If it stops moving, subsidize it.”
Mahoney–
Insufficient or lax regulation was not the cause of financial crisis. Crisis due to mistake in monetary policy. Collapse of tech stops, 9/11, Enron, Feds reduced short-run interest rates.
Taylor rule could be used to predict changes in short-term rates.But feds continued to ease and kept lowering it. At the same time house prices increased dramatically.
Whenever there are long-term short interest rates in high inflation, people will want to buy at short-term rates in hope of quick appreciation and quick profit. Adjustable rate mortgages accomplished this.
Possible explanations-
1. Failure of Consumer Protection- banks tricked customers by offering low teaser rates. But when short term rates unusually low, people wanted to borrow short in order to borrow long. Why were banks so easy to make the loan?
2. Repeal of Glass Steagle by GLB, allowed banks to affiliate with investment firms. Doesn’t explain why commercial and investment banks got into trouble.