Legislating for the Future

The podcast show we are releasing today features Professor Jonathan Gould of University of California (Berkeley) Law School who discusses his recent article co-written with Professor Rory Van Loo of Boston University School of Law which was recently published in the University of Chicago Law Review titled “Legislating for the Future”.

The introduction of the article describes “legislating for the future” as follows:

Public policy must address threats that will manifest in the future. Legislation enacted today affects the severity of tomorrow’s harms arising from biotechnology, climate change, and artificial intelligence. This Essay focuses on Congress’s capacity to confront future threats. It uses a detailed case study of financial crises to show the limits and possibilities of legislation to prevent future catastrophes. By paying insufficient attention to Congress, the existing literature does not recognize the full nature and extent of the institutional challenges in regulating systemic risk. Fully recognizing those challenges reveals important design insights for future-risk legislation.

During the podcast, we discuss the dynamics around enacting legislation through Congress that aims to increase the stability of the financial system and prevent financial crises. We discuss with Professor Gould about why passing this sort of legislation is so difficult and what Congress might be able to do about that.

We consider the following questions:

1.  What are the basic dynamics that make it so hard to pass financial stability legislation?

2.    How does the structure of Congress affect the difficulty of passing financial stability legislation?

3.   We have seen some big bills lately, like Biden’s Inflation Reduction Act and the big taxing and spending bill from Trump this year.  Why is financial regulation harder to enact than these other types of legislation?

4.   Has it gotten easier or harder over time to enact financial regulation?

5.  What happens after financial stability legislation is enacted?

6.   What can Congress do to enhance its capacity in this area?

7.   What types of legislative drafting techniques are likely to be especially promising?

8.   What role is there for federal agencies to play in augmenting congressional capacity?

9.  What role is there for states or private plaintiffs to play in augmenting congressional capacity?

10. What relevance does this all have beyond financial regulation?

11. In light of the fact that the article was published before the 2024 election and change in administration are any of Professor Gould’s conclusions altered by more recent events?

This podcast was hosted by Alan Kaplinsky, the founder and former chair for 25 years and now Senior Counsel of the Consumer Financial Services Group.