International law exists and it is real, but it might be worth noting how differently it operates than does domestic administrative law. When the financial crisis was local, we could evaluate the government's actions as lawyers might - were those actions consistent with its legal authority? Then Congress passed legislation, and the limitations on Congress's ability to legislate how it wishes are much fewer, but still extant in the Constitution and so on.
Now that there is an increasingly global response, the issue has moved even further away from the legal constraints on government action. There are very few treaties or customs that limit state action in the economic sphere (nationalization without compensation is a controversial exception, though), and so, in the view of this blogger, the interesting questions will turn from "how did they justify that given their current legal authority?" to "what legal institutions will they use to implement their preferred policies?" And, of course, because it's an effort to coordinate international policy, "will it work at all?"
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1. Posted by Mark Fenster on October 13, 2008 @ 10:55 | Permalink
David:
Do you see this as an advantage of international law over administrative law? When facing a significant crisis, is it better to be concerned with justifying legal authority or with identifying or creating the right institution to implement policies?
Because it faced a crisis prior to the APA, the New Deal was more concerned with the latter question than with the former, at least ex ante. Are we better off today? Or given the international nature of any significant crisis, is it ultimately beside the point anyway, since the evolution of this crisis up the scale of government was inevitable? (Which may well have been true in 1929 and the 1930s, but we now have more international institutions with which to work.)
2. Posted by David Zaring on October 13, 2008 @ 14:41 | Permalink
Not necessarily an advantage. I don't think it drove the internationalization of the crisis (though you'd think in an emergency governments would gravitate to the places where legal constraint operates less). I'll note that even though administrative constraints were more clear, they've shaded government action at the margins rather than in the main.
3. Posted by Mike Guttentag on October 13, 2008 @ 15:39 | Permalink
Maybe this is the same point that Mark Fenster raises, but I continue to think that questions about what are the right regulatory responses (the substantive issues) are also crucial and underexplored.
4. Posted by David Zaring on October 13, 2008 @ 15:42 | Permalink
True of course. But perhaps not our comparative advantage.
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