David T. Zaring

Import Safety: Regulatory Governance in the Global Economy

Preface PART I: PERSPECTIVES ON THE PROBLEM 1. Consumer Protection in an Era of Globalization -Cary Coglianese, Adam M. Finkel, and David Zaring 2. The Other China Trade Deficit: Export Safety Problems and Responses -Jacques deLisle 3. Parochialism About the Safety of Imports -Jonathan Baron PART II: INTERNATIONAL TRADE INSTITUTIONS 4. Import Safety Regulation and International Trade -Tracey Epps and Michael J. Trebilcock 5. The Politics of Food Safety in the Age of Global Trade: The Codex Alimentarius Commission in the SPS Agreement of the WTO -Tim Buthe 6. Import Safety Rules and Generic Drug Markets -Kevin Outterson PART III: TOWARD SMARTER REGULATION 7. Forecasting Consumer Safety Violations and Violators -Richard Berk 8. Risk-Based Regulation for Import Safety -Lorna Zach and Vicki Bier 9. Solving the Problem of Scale: The European Approach to Import Safety and Security Concerns -Alberto Alemanno PART IV: LEVERAGING THE PRIVATE SECTOR 10. Importers as Regulators: Product Safety in a Globalized World -Kenneth A. Bamberger and Andrew T. Guzman 11. Bonded Import Safety Warranties -Tom Baker 12. Private Import Safety Regulation and Transnational New Governance -Errol Meidinger PART V: THE WAY FORWARD 13. Delegated Governance: Consumer Safety in the Global Marketplace -David Zaring and Cary Coglianese List of Contributors Index Acknowledgments

The Dealmaking State: Executive Power in the Trump Administration

The Trump administration has promised to pursue policy through deals with the private sector, not as an extraordinary response to extraordinary events, but as part and parcel of the ordinary work of government. Jobs would be onshored through a series of deals with employers. Infrastructure would be built through joint ventures where the government would fund but private parties would own and operate public assets. We evaluate how this dealmaking state would work as a matter of law. Deals were the principal government response to the financial crisis, partly because they offered a just barely legal way around constitutional and administrative barriers to executive action. Moreover, unilateral presidential dealmaking epitomizes the presidentialism celebrated by Justice Elena Kagan, among others. But because it risks dispensing with process, and empowers the executive, we identify ways that it can be controlled through principles of transparency, rules of statutory interpretation, and policymaking best practices such as delay and equivalent treatment of similarly situated private parties.

Regulation by Threat: Dodd-Frank and the Non-Bank Problem

A central lesson of the global financial crisis is that banks are not the only types of financial firms that can pose dangers to the broader financial system. One of Dodd-Frank’s primary mechanisms for responding to this reality is to empower a council of financial regulators to designate individual non-bank financial institutions as systemically risky. Although the Financial Stability Oversight Council (FSOC) has only exercised this authority four times, it has occasioned considerable controversy in court, in Congress, and among commentators. This Article defends the FSOC designation scheme, arguing that most of its critics misunderstand the mechanisms by which it helps to reduce systemic risk outside of the banking sector. FSOC designation does not, and cannot, precisely distinguish between firms that could pose a systemic risk and those that could not. FSOC’s broad discretion to impose costly sanctions on designated firms instead advances two quite different goals. First, it deters non-bank firms from seeking out systemically risky strategies or activities. Second, it holds financial regulators to account by threatening to impose additional restrictions and supervision on the firms they regulate if they fail to address systemic risk on their own. We term this approach “regulation by threat,” and suggest that it is appropriate when risks are hard to identify, the perils of mistake are great, and the downsides of misdiagnosis extreme. Systemic risk outside of the banking sector meets this description to a tee. Moreover, we argue that the Council’s discretion is better cabined by its structure – which features diverse membership, voting, review, and political safeguards – than by insistence on particularly “hard look” judicial review, accompanied by the requirement of a cost benefit analysis for any individual designation decision. Similarly, the various reform proposals to limit FSOC’s discretion or impose additional procedural limits on its operations generally threaten to undermine the Council’s effectiveness by unnecessarily limiting its discretion, and thus its capacity to regulate by threat.

Three Models of Constitutional Torts

The new prominence of constitutional tort claims like Valerie Plames and Jose Padillas 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.