While more a diagnosis than a prescription, Professor Brett McDonnell’s Dampening Financial Regulatory Cycles makes a noteworthy contribution in defense of the aspiration that “[f]inancial regulation should be countercyclical.” The Article offers a refined examination of the procyclical nature of our financial regulation and introduces three competing explanatory models. More frustrating, however, is the Article’s consideration of the administrative mechanisms available to dampen financial regulatory cycles. While able to identify several “intelligent roadblocks” available to regulators looking to “block bad new rules but not beneficial ones,” the Article offers little hope that any such mechanism will be applied skillfully to reverse the procyclical regulatory bias and its attendant consequences.
In his engaging article, Chad Flanders examines the justification of executive pardons. The article’s key contribution is its contention that we cannot determine whether pardons are justified solely by considering them individually. It is not enough, that is, to ask in each case whether there exist what Kathleen Moore calls “good and sufficient reasons” for the pardon (basically, whether the pardon will remedy a miscarriage of justice of one form or another). To assess whether pardons are justified, Flanders argues that we must also examine them holistically. Pardons that are justifiable individually (because there are, we may agree, good and sufficient reasons for them) may nevertheless be unjustified if they are part of a pattern of pardoning that is racist, favoritist, or otherwise problematic.
Professor Deborah Eisenberg has produced a fine and important work, Regulation by Amicus, which assesses U.S. Department of Labor (DOL) efforts to influence statutory interpretation and effectuate public policy through the use of friend of the court briefs in private litigation. Most notably, she focuses on the unconventional deployment of this strategy by the two most recent presidential administrations in the service of their interpretations of the Fair Labor Standards Act (FLSA), the federal statute governing wage and hour law. Through the often aggressive submission of amicus curiae briefs, the administration of George W. Bush aimed to use the Supreme Court’s agency deference doctrine to eviscerate worker protections,while Barack Obama’s administration has employed the same tool to revive and expand interpretations protective of employees.
In his recent Article on the right of publicity for college athletes, Professor Marc Edelman proves prescient in his arguments that a video game manufacturer using likenesses of college athletes violated their publicity rights and could not reasonably shelter itself behind the First Amendment. Since the publication of Edelman’s Article, two Federal Courts of Appeal have decided cases in favor of the athletes, recognizing the validity of their rights of publicity while holding that the game manufacturer did not sufficiently transform the athletes’ likenesses so as to qualify for a free speech defense. As a result, the manufacturer announced that it will not publish a new college football game in 2014.