“Too big to fail”—or “TBTF”—is a popular metaphor for a core dysfunction of today’s financial system: the recurrent pattern of government bailouts of large, systemically important financial institutions. The financial crisis of 2008 made TBTF a household term, a powerful rhetorical device for expressing the widely shared discontent with the pernicious pattern of privatizing gains and socializing losses it came to represent in the public’s eye. Ten years after the crisis, TBTF continues to frame much of the public policy debate on financial regulation. Yet, the analytical content of this term remains remarkably unclear.

Soon after the 2016 election of Donald Trump as President of the United States, while Republicans controlled Congress, opponents of the fledgling Consumer Financial Protection Bureau (CFPB) opened a campaign against the Bureau. Their target was less the substance of federal consumer financial protection laws than the structure of the CFPB itself. This emphasis on structure was a response to the fact that Congress in 2010 had given special thought to the design of the CFPB to safeguard the Bureau and its mission.

From its inception, the Consumer Financial Protection Bureau (CFPB) has been criticized in the court of public opinion for a host of reasons—mostly focused on the aggressive scope of its supervision, rulemaking, and enforcement actions. During the last several years, however, a new critique has emerged and gained traction—at least in federal courts. Defendants in CFPB enforcement actions began to routinely (and sometimes effectively) argue that the CFPB’s entire structure is unconstitutional. The CFPB faced its greatest constitutional crisis during the period from 2015 to 2018, when a D.C. Circuit case, PHH v. CFPB, threatened its structure, very existence, and—by extension—all of its prior enforcement actions. Though that case would ultimately be dismissed by the CFPB, questions about the CFPB’s constitutionality remain, even with 100 years of the Supreme Court’s key cases in executive power and agency independence behind us. This Article revisits this 100-year history, and then situates it against attacks upon the CFPB, finding that the CFPB’s design and structure stand on firm constitutional ground. However, the Article critiques the singular-director structure for other reasons and suggests improvements in order to improve the CFPB’s political—if not legal—standing for the future.

The year 2018 marked ten years since the global financial meltdown. This Article focuses on the current state of consumer protection in the United States and considers the effectiveness of various post-meltdown government initiatives geared towards consumer protection. As the current administration dismantles many post-crisis initiatives, such as the Dodd-Frank Act, this Article considers the future of consumer protection and what Americans need moving forward.

This Article explains why we should view the experiences of LGBTQ youth in the child welfare system as an essential part of the debate over religious liberty and LGBTQ equality. It further describes why it is necessary to include eliminating LGBTQ-based child welfare inequality within a broader vision of a fully inclusive LGBTQ antidiscrimination regime. To accomplish these goals, this Article recasts religious exemptions involving LGBTQ child welfare through the lens of historical theories of sexual deviance in the fields of criminology, psychology, and sociology.

How do administrative agencies interpret statutes? This Article looks behind the black box of agency statutory interpretation to review how administrative agencies use canons of construction and other tools of statutory interpretation to decide cases. Surveying over 7000 cases heard by the National Labor Relations Board (NLRB) from 1993–2016, I analyze the statutory methodologies the Board uses in its decisions in order to uncover patterns over time. Overall, I find no ideological coherence to statutory methodology. Board members often use statutory methodologies with dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on policy pronouncements and textual debates and less on precedent or legislative history as the primary method of interpretation. After analyzing the empirical data, I set forth policy recommendations for how agencies should interpret statutes.

By Chrystin Ondersma. Full text here. For individuals struggling to make ends meet, an emergency expense or sudden drop in income can be catastrophic. Often credit is the only option available in such emergencies, but taking out credit can worsen an already precarious financial situation—individuals and families may go without food or electricity in order to…

By Stavros Gadinis and Amelia Miazad. Full text here. Although corporate wrongdoing can reach an immense scale with disastrous ramifications, holding boards accountable has long been perceived as elusive. Under both state fiduciary duty law and federal securities doctrine, directors and officers are liable only if they were aware of corporate failures or reckless in ignoring…