Essay

Clarity Before Crisis: Designing Legible Emergency Powers in Financial Regulation

This Essay responds to Samer Saffarini’s argument that post-Loper Bright judicial scrutiny can serve as a necessary check on regulatory overreach in financial crises. While that view is intuitively appealing, this Essay contends that it places too much weight on courts and too little on Congress. Emergency powers in financial regulation are often at their most consequential when they are least constrained—and judicial review, though valuable, is no substitute for statutory design. Drawing on institutional theory and recent crises, the Essay argues that Congress should enact “legible emergency powers”: frameworks that define factual triggers, constrain the scope of agency tools, and require transparency from the moment action begins. It then extends the conversation beyond federal law, outlining complementary mechanisms—state-based and private—that may serve as failsafes when federal intervention falters. In the end, the Essay offers a design-based model for emergency governance: one that enables swift action without sacrificing legitimacy and clarity without surrendering capacity.

Introduction

For the better part of a century, the American administrative state’s power expanded largely unchecked. Agencies spent decades extending their reach “to solve the Nation’s expanding problems,” developing their own forms of quasi-legal decision-making across “thousands of orders, opinions, statements, and instructions.”1 1.Ginsburg, Feldman & Bress v. Fed. Energy Admin., 591 F.2d 717, 719 (D.C. Cir. 1978).Show More But the old consensus—under which regulation was presumed automatically wise—has eroded.2 2.See, e.g., Ezra Klein & Derek Thompson, Abundance 8 (2025).Show More Today, concern over regulation’s stifling effects on innovation and production has reshaped both political culture and judicial doctrine.3 3.Id.Show More The political culture, for one, is increasingly less willing to defer to expert insistence that a given rule is “necessary.”4 4.See, e.g., Jason Scott Johnston, Restoring Objectivity and Balance to Regulatory Science: A Comment on Dudley and Peacock, 24 Sup. Ct. Econ. Rev. 101, 102 (2016) (discussing the problem of the “Scientist King”—an agency expert who is “confident that [their] expert knowledge of the evidence makes [them] the best judge of the policy based on that evidence” (emphasis added)); Cary Funk, Key Findings About Americans’ Confidence in Science and Their Views on Scientists’ Role in Society, Pew Rsch. Ctr. (Feb. 12, 2020), https://www.pewresearch.org/short-reads/2020/02/12/key-findings-about-americans-confide‌nce-in-science-and-their-views-on-scientists-role-in-society/ [https://perma.cc/6LTH-7A‌QS].Show More Courts, too, are less willing to defer to an agency’s interpretation of a statute it administers. In Loper Bright Enterprises v. Raimondo, for example, the Supreme Court held that “courts need not and under the [Administrative Procedure Act] may not defer to an agency interpretation of the law simply because a statute is ambiguous.”5 5.144 S. Ct. 2244, 2273 (2024).Show More

In the realm of financial regulation, the trouble is that laws are often at their most consequential when they are least precise. Indeed, in moments of crisis, agencies like the Federal Reserve (“Fed”) and the Federal Deposit Insurance Corporation (“FDIC”) turn to statutory provisions drafted for speed and flexibility—emergency authorities designed to prevent collapse before Congress can act. These powers are often vague by design: words like “unusual and exigent”6 6.Federal Reserve Act § 13(3)(A), 12 U.S.C. § 343(3)(A).Show More or “serious adverse effects”7 7.12 U.S.C. § 1823(c)(4)(G).Show More substitute for clear triggers or hard constraints. And when invoked, these provisions can shift trillions of dollars, shape market expectations, and redefine the balance of power between the public and private sectors.

For decades, courts treated this ambiguity with deference. But in Loper Bright, the Court signaled that this era was over. Instead, a new era—one characterized by skepticism toward regulatory discretion, particularly in high-stakes domains like finance—was to begin. Some commentators have welcomed this shift. A recent piece by Samer R. Saffarini in the Virginia Law Review Online argues that stronger judicial review of banking and financial regulators will deter the misuse of emergency powers and reduce the long-term risk of financial instability.8 8.Samer R. Saffarini, Note, Judicial Review of Emergency Powers in Banking and Financial Regulation, 111 Va. L. Rev. Online 134, 164 (2025).Show More As the theory goes, discouraging agencies’ impulse to “cry wolf” will force them to act more cautiously, preserving market discipline and insulating the economy from moral hazard.9 9.Id.Show More

But while concerns about regulatory overreach are well taken, this new regime presents issues of its own. Courts are not designed to govern emergencies in real time, nor are they well-positioned to second-guess the economic judgments of financial regulators under stress.10 10.In re Abbott, 954 F.3d 772, 801 (5th Cir. 2020) (Dennis, J., dissenting) (explaining that “courts must not act as super-executives in an emergency”).Show More Relying on judicial veto power alone to discipline emergency action risks producing the opposite of what critics intend: not deliberation, but hesitation; not modesty, but paralysis. In a post-Chevron world, the legal system must offer more than skepticism.

This Essay responds to Saffarini by arguing that financial emergency powers should be restructured ex ante for legibility: statutes should define the factual triggers, scope, and duration of emergency interventions before crisis arrives. Rather than relying on courts to filter good uses from bad, Congress should clarify upfront when and how regulators may act under conditions of financial stress. Legible emergency powers reduce moral hazard, bolster accountability, and enable swift action that is both effective and democratically authorized. They advance both the long-standing rule-of-law goal of checking discretionary power and the modern institutional goal of building a state capable of responding to real systemic threats.

This Essay proceeds in four parts. Part I describes how emergency provisions in financial law—particularly § 13(3) of the Federal Reserve Act and the systemic risk exception to the Federal Deposit Insurance Act’s least-cost resolution rule—enable regulators to act quickly in times of stress, but often without clear legal or factual constraints. It argues that the core problem is not emergency power itself, but the lack of ex ante statutory design to structure its use. Part II engages with Saffarini’s argument that judicial review, especially in the wake of Loper Bright, offers a sufficient check on regulatory overreach. While judicial scrutiny may help deter opportunistic agency action, this Part contends that courts alone cannot reliably assess crisis conditions in real time and are poorly positioned to serve as gatekeepers during moments of economic uncertainty. Part III outlines a model of “legible emergency powers,” in which Congress defines emergency conditions, permissible actions, and accountability mechanisms in advance. This structure enables fast and legitimate regulatory action while preserving both democratic oversight and market discipline. Part IV, meanwhile, outlines possible alternatives to federal regulatory action that may just as effectively aid in financial crisis management. In the end, the Essay argues that clarity before crisis—rather than discretion policed after the fact—offers the soundest foundation for emergency financial governance.

  1.  Ginsburg, Feldman & Bress v. Fed. Energy Admin., 591 F.2d 717, 719 (D.C. Cir. 1978). ↑
  2.  See, e.g., Ezra Klein
    &

    Derek Thompson, Abundance

    8

    (2025). ↑

  3.  Id. ↑
  4.  See, e.g., Jason Scott Johnston, Restoring Objectivity and Balance to Regulatory Science: A Comment on Dudley and Peacock, 24 Sup. Ct. Econ. Rev. 101, 102 (2016) (discussing the problem of the “Scientist King”—an agency expert who is “confident that [their] expert knowledge of the evidence makes [them] the best judge of the policy based on that evidence” (emphasis added)); Cary Funk, Key Findings About Americans’ Confidence in Science and Their Views on Scientists’ Role in Society, Pew Rsch. Ctr. (Feb. 12, 2020), https://www.pewresearch.org/short-reads/2020/02/12/key-findings-about-americans-confide‌nce-in-science-and-their-views-on-scientists-role-in-society/ [https://perma.cc/6LTH-7A‌QS]. ↑
  5.  144 S. Ct. 2244, 2273 (2024). ↑
  6.  Federal Reserve Act § 13(3)(A), 12 U.S.C. § 343(3)(A). ↑
  7.  12 U.S.C. § 1823(c)(4)(G). ↑
  8.  Samer R. Saffarini, Note, Judicial Review of Emergency Powers in Banking and Financial Regulation, 111 Va. L. Rev. Online 134, 164 (2025). ↑
  9.  Id. ↑

  10.  In re Abbott, 954 F.3d 772, 801 (5th Cir. 2020) (Dennis, J., dissenting) (explaining that “courts must not act as super-executives in an emergency”). ↑

Void Judgments and “Reasonable Time”

Introduction

Rule 60(b) of the Federal Rules of Civil Procedure authorizes federal district courts, “[o]n motion and just terms,” to “relieve a party or its legal representative from a final judgment, order, or proceeding for” certain specified reasons.1 1.Fed. R. Civ. P. 60(b).Show More Rule 60(b)(4) specifically allows parties to seek such relief where “the judgment is void.”2 2.Fed. R. Civ. P. 60(b)(4).Show More Rule 60(c)(1) establishes a time limit for Rule 60(b) motions, demanding that certain requests for relief—including requests based on a party’s inadvertence or mistake, newly discovered evidence, or allegations of fraud—must be brought “no more than a year after the entry of the judgment” from which relief is sought.3 3.Fed. R. Civ. P. 60(c)(1); Fed. R. Civ. P. 60(b)(1)–(3).Show More All other motions under the Rule must be made “within a reasonable time.”4 4.Fed. R. Civ. P. 60(c)(1).Show More

Notwithstanding the Rule’s seemingly straightforward language, multiple federal courts of appeals have concluded that Rule 60(c)(1)’s “reasonable time” requirement does not apply where a party seeks relief from the consequences of an assertedly void judgment.5 5.See Petition for a Writ of Certiorari at 8–11, Coney Island Auto Parts Unlimited, Inc. v. Burton, 145 S. Ct. 2775 (2025) (No. 24-808) (mem.) (observing that, “[a]part from the Sixth Circuit, every Court of Appeals to have addressed the issue has concluded that no . . . time limitation exists” for a motion under Rule 60(b)(4) and citing decisions from the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits as well as the D.C. Circuit).Show More The refusal to apply the reasonable time limitation to motions under Rule 60(b)(4) is premised on the idea that “no passage of time can transmute a nullity into a binding judgment, and hence there is no time limit for such a motion.”6 6.United States v. One Toshiba Color Television, 213 F.3d 147, 157 (3d Cir. 2000) (en banc); see also, e.g., United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990) (“Even if appellants’ motion was not made within the prescribed period, if the judgment was void, relief must be granted nevertheless.”); Austin v. Smith, 312 F.2d 337, 343 (D.C. Cir. 1962) (“Under [Rule 60(b)(4)] . . . , the only question for the court is whether the judgment is void; if it is, relief from it should be granted. . . . [T]he Rule places no time limit on an attack upon a void judgment . . . .”).Show More This view also finds support among leading academic commentators on federal jurisdiction and procedure.7 7.11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2862, at 431 (3d ed. 2012) (“[T]here is no time limit on an attack on a judgment as void.”) [hereinafter Wright, Miller & Kane].Show More

But not everyone is convinced. Some courts, including the U.S. Court of Appeals for the Sixth Circuit, have adopted a literal interpretation of the Rule that would require all motions under Rule 60(b)—including those authorized by Rule 60(b)(4)—to be made within a “reasonable time.”8 8.In re Vista-Pro Auto., LLC, 109 F.4th 438, 444 (6th Cir. 2024), cert. granted sub nom. Coney Island, 145 S. Ct. 2775; see also, e.g., Lee v. Marvel Enters., Inc., 765 F. Supp. 2d 440, 449 (S.D.N.Y. 2011) (“[A] claim for Rule 60(b)(4) relief must have been brought within a ‘reasonable time.’”), aff’d, 471 F. App’x 14 (2d Cir. 2012).Show More The U.S. Supreme Court recently granted certiorari in Coney Island Auto Parts Unlimited, Inc. v. Burton,9 9.Coney Island, 145 S. Ct. 2775.Show More which presents the question of “[w]hether Federal Rule of Civil Procedure 60(c)(1) imposes any time limit to set aside a void default judgment for lack of personal jurisdiction.”10 10.Petition for a Writ of Certiorari, supra note 5, at i.Show More This case seems to confront the Court with a direct conflict between the literal text of Rule 60 and deep intuitions regarding the relationship between jurisdiction and judgment validity.

This Essay suggests a way in which the Court could answer that question that makes sense of both the Rule’s text and background history, and the traditional conception that void judgments are nullities carrying no legal effect. This interpretation draws upon the traditional common law distinction between judgments that were void on the face of the record and judgments for which the rendering court’s lack of jurisdiction could only be established through extrinsic evidence. Though judgments of the former type were generally regarded as absolute nullities that could be challenged at any time, challenges that hinged on extrinsic evidence often faced additional obstacles, including a potential laches defense if the moving party unreasonably delayed in seeking relief. Interpreting Rule 60(c)(1) in light of this distinction would make sense of the text’s extension of the “reasonable time” requirement to motions for relief from void judgments without imputing to the enactors an intention to depart from deeply rooted background principles regarding the relationship between adjudicative jurisdiction and the validity and finality of legal judgments. This interpretation also comports with the overarching policy goals of Rule 60(b) and of the Federal Rules more broadly.

  1.  Fed. R. Civ. P. 60(b). ↑
  2.  Fed. R. Civ. P. 60(b)(4). ↑
  3.  Fed. R. Civ. P. 60(c)(1); Fed. R. Civ. P. 60(b)(1)–(3). ↑
  4.  Fed. R. Civ. P. 60(c)(1). ↑
  5.  See Petition for a Writ of Certiorari at 8–11, Coney Island Auto Parts Unlimited, Inc. v. Burton, 145 S. Ct. 2775 (2025) (No. 24-808) (mem.) (observing that, “[a]part from the Sixth Circuit, every Court of Appeals to have addressed the issue has concluded that no . . . time limitation exists” for a motion under Rule 60(b)(4) and citing decisions from the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits as well as the D.C. Circuit). ↑
  6.  United States v. One Toshiba Color Television, 213 F.3d 147, 157 (3d Cir. 2000) (en banc); see also, e.g., United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990) (“Even if appellants’ motion was not made within the prescribed period, if the judgment was void, relief must be granted nevertheless.”); Austin v. Smith, 312 F.2d 337, 343 (D.C. Cir. 1962) (“Under [Rule 60(b)(4)] . . . , the only question for the court is whether the judgment is void; if it is, relief from it should be granted. . . . [T]he Rule places no time limit on an attack upon a void judgment . . . .”). ↑
  7.  11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2862, at 431 (3d ed. 2012) (“[T]here is no time limit on an attack on a judgment as void.”) [hereinafter Wright, Miller & Kane]. ↑
  8.  In re Vista-Pro Auto., LLC, 109 F.4th 438, 444 (6th Cir. 2024), cert. granted sub nom. Coney Island, 145 S. Ct. 2775; see also, e.g., Lee v. Marvel Enters., Inc., 765 F. Supp. 2d 440, 449 (S.D.N.Y. 2011) (“[A] claim for Rule 60(b)(4) relief must have been brought within a ‘reasonable time.’”), aff’d, 471 F. App’x 14 (2d Cir. 2012). ↑
  9.  Coney Island, 145 S. Ct. 2775. ↑
  10.  Petition for a Writ of Certiorari, supra note 5, at i. ↑

Neo-Brandeis Goes to Washington: A Provisional Assessment of the Biden Administration’s Antitrust Record

Introduction

In early 2021, a new coterie of trustbusters came to Washington with the stated purpose of radically overhauling the antitrust status quo. The three central figures—Federal Trade Commission (“FTC”) Chair Lina Khan, Department of Justice (“DOJ”) Antitrust Division Assistant Attorney General (“AAG”) Jonathan Kanter, and Special Assistant to the President for Technology and Competition Policy in the White House Tim Wu—were self-identified neo-Brandeisians, committed to returning antitrust policy to a contemporary version of Justice Louis Brandeis’s ideas.1 1.See generally Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate, 9 J. Eur. Competition L. & Prac. 131 (2018) (describing the history and merits of the “New Brandeis School’s” philosophy and approach to antitrust policy); Zephyr Teachout, “The Long Future of the Neo-Brandeisian Movement, in Three Parts,” Network L. Rev. (July 24, 2024), https://www.networklawreview.org/teachout-future-neobrandeis/ [https://perma.cc‌/KWN3-J62J] (identifying Khan, Kanter, and Wu as key neo-Brandeisian figures).Show More At the urging of Senator Elizabeth Warren, President Biden turned over his Administration’s antitrust policy to the neo-Brandeisians,2 2.Fred Lucas, Antitrust and Economic Leaders Have Links to Elizabeth Warren, D.C.J. (Dec. 6, 2023), https://www.dcjournal.com/antitrust-and-economic-leaders-have-links-to-eliz‌abeth-warren/ [https://perma.cc/UW5Z-5EAE].Show More who vowed to break antitrust’s reigning consumer welfare standard, retool competition policy to protect other interests such as labor and small business, and significantly expand scrutiny of corporate power, particularly as to Big Tech.3 3.Exec. Order No. 14,036, 3 C.F.R. 609 (2022).Show More

Four years later, as the neo-Brandeisians retreat from Washington in the wake of a new administration, it is fitting to take stock of what actually happened in those four years. Given the soaring political salience of antitrust during the Biden Administration, there is already a rush to define the narrative regarding the neo-Brandeisians’ time in the nation’s capital.4 4.See, e.g., Press Release, New Economic Liberties Report Takes a Close Look at Biden and Trump Antitrust Records, Am. Econ. Liberties Project (Oct. 30, 2024), https://www.economic‌liberties.us/press-release/new-economic-liberties-report-takes-a-close-look-at-biden-and-tru‌mp-antitrust-records/ [https://perma.cc/B2JY-7N2K]; Will Norris, Trump vs. Biden: Who Got More Done on Antitrust?, Wash. Monthly (Apr. 7, 2024), https://washingtonmonthly.com/20‌24/04/07/trump-vs-biden-who-got-more-done-on-antitrust/ [https://perma.cc/3W9T-YJPE].Show More Inquiring people want to know, and manipulative people want to manipulate.

This Essay attempts to answer the “what really happened?” question with two points. First, from an immediate perspective, the revolution did not happen. On a statistical level, the neo-Brandeisians did not increase antitrust enforcement, and in many ways were less rigorous in bringing antitrust cases than previous administrations. (The reader should wait for more full explorations below before overreacting to this claim.) On a qualitative level, the neo-Brandeisians did attempt dramatic reform in many ways—jettisoning existing policies, implementing new, interventionist ones, advancing novel or “edgy” theories in merger and non-merger cases, and, especially, testing the FTC’s rulemaking authority through an aggressive rule prohibiting employment non-compete agreements.5 5.See infra Subsection I.A.1; infra Paragraph I.A.2.ii; infra Sections I.B, I.D.Show More But the neo-Brandeisians leave Washington with relatively little to show for these efforts. With some important exceptions, they were not successful in advancing their “edgy” theories, they did not bring and litigate to conclusion a single civil non-merger case, and the non-compete rule has been nationally enjoined and faces grim future prospects.6 6.See infra Paragraph I.A.2.ii; infra Sections I.B, I.D.Show More

Countervailing the first point, this Essay’s second point is that it is far too early to draw robust conclusions about the success or failure of the neo-Brandeisians’ attempted revolution. For one, some of the data regarding the last year or months of the Biden Administration are not yet available,7 7.See Competition Enforcement Database, U.S. Fed. Trade Comm’n [hereinafter FTC Competition Enforcement Database], https://www.ftc.gov/competition-enforcement-database [https://perma.cc/3AY9-R4WQ] (last visited Aug. 30, 2025) (showing that data for fiscal year 2024 is not yet published).Show More and several of the significant lawsuits brought by the Administration are still pending.8 8.See, e.g., Order, United States v. Apple, Inc., No. 24-cv-04055 (D.N.J. June 30, 2025) (denying Apple’s motion to dismiss); Memorandum Opinion and Order, United States v. Visa, Inc., No. 24-cv-07214 (S.D.N.Y. June 23, 2025) (denying Visa’s motion to dismiss).Show More That may take many more years. But there is an even more significant point about the need for patience: the neo-Brandeisians came to political power very early in the trajectory of their movement (perhaps too early for their own good).9 9.See infra notes 203–05 and accompanying text.Show More By comparison, the last revolutionary antitrust movement—the Chicago School—spent decades building its agenda through scholarship and socialization of its ideas to law students, lawyers, and judges before it achieved success in the courts and antitrust agencies.10 10.See infra notes 200–02 and accompanying text.Show More It is far too early to say what the ultimate outcome and influence of the neo-Brandeisian challenge, including the seeds sown in the last four years, will be. So, while answers to short-term questions about what the neo-Brandeisians did in Washington are largely available, any assessment must remain provisional for several decades to come.

  1.  See generally Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate, 9 J. Eur. Competition L. & Prac. 131 (2018) (describing the history and merits of the “New Brandeis School’s” philosophy and approach to antitrust policy); Zephyr Teachout, “The Long Future of the Neo-Brandeisian Movement, in Three Parts,” Network L. Rev. (July 24, 2024), https://www.networklawreview.org/teachout-future-neobrandeis/ [https://perma.cc‌/KWN3-J62J] (identifying Khan, Kanter, and Wu as key neo-Brandeisian figures). ↑
  2.  Fred Lucas, Antitrust and Economic Leaders Have Links to Elizabeth Warren, D.C.J. (Dec. 6, 2023), https://www.dcjournal.com/antitrust-and-economic-leaders-have-links-to-eliz‌abeth-warren/ [https://perma.cc/UW5Z-5EAE]. ↑
  3.  Exec. Order No. 14,036, 3 C.F.R. 609 (2022). ↑
  4.  See, e.g., Press Release, New Economic Liberties Report Takes a Close Look at Biden and Trump Antitrust Records, Am. Econ. Liberties Project (Oct. 30, 2024), https://www.economic‌liberties.us/press-release/new-economic-liberties-report-takes-a-close-look-at-biden-and-tru‌mp-antitrust-records/ [https://perma.cc/B2JY-7N2K]; Will Norris, Trump vs. Biden: Who Got More Done on Antitrust?, Wash. Monthly (Apr. 7, 2024), https://washingtonmonthly.com/20‌24/04/07/trump-vs-biden-who-got-more-done-on-antitrust/ [https://perma.cc/3W9T-YJPE]. ↑
  5.  See infra Subsection I.A.1; infra Paragraph I.A.2.ii; infra Sections I.B, I.D. ↑
  6.  See infra Paragraph I.A.2.ii; infra Sections I.B, I.D. ↑
  7.  See Competition Enforcement Database, U.S. Fed. Trade Comm’n [hereinafter FTC Competition Enforcement Database], https://www.ftc.gov/competition-enforcement-database [https://perma.cc/3AY9-R4WQ] (last visited Aug. 30, 2025) (showing that data for fiscal year 2024 is not yet published). ↑
  8.  See, e.g., Order, United States v. Apple, Inc., No. 24-cv-04055 (D.N.J. June 30, 2025) (denying Apple’s motion to dismiss); Memorandum Opinion and Order, United States v. Visa, Inc., No. 24-cv-07214 (S.D.N.Y. June 23, 2025) (denying Visa’s motion to dismiss). ↑
  9.  See infra notes 203–05 and accompanying text. ↑
  10.  See infra notes 200–02 and accompanying text. ↑
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