Regulation by Deal: The Government's Response to the Financial Crisis, 61 Admin. L. Rev. 463 (2009)
We think that the government's novel efforts during the financial crisis can be usefully analyzed in two ways. First, the government has been doing deals-the sorts of deals that it usually leaves to the private sector. The dealmaking ethos permeated even the staffing of the government's response-its financial crisis team was comprised largely of investment bankers, led primarily by Secretary Paulson, a veteran dealmaker who served as the Chief Executive Officer (CEO) of Goldman Sachs Group, Inc. In this Article, we show how these deals were done and how the government stretched, and in some cases appeared to overstretch, its legal authority to make those deals happen. Second, the government, as a matter of administrative law, has been exploring the outer limits of its permissible authority in what it views as a time of crisis and, in so doing, conducted the management of the crisis through the two institutions least constrained by the law-the Treasury Department and the Federal Reserve. We analyze how the government's response both pushed and was shaped by the law at its disposal.