Too Big to Fail or Too Hard to Remember: Lessons from the New Deal and the Triumph, Tragedy, and Lost Legacy of James M. Landis


Monday, November 24, 2014, 11:00am to 12:50pm


Milstein East B, Harvard Law School

11-11:45am: Keynote and response
12-12:50pm: Roundtable discussion

James M. Landis – scholar, administrator, advocate, and political adviser – is known for his seminal contribution to the creation of the modern system of market regulation in the USA. As a highly influential participant in the policies of the New Deal, he drafted the statute that was to become the foundation for securities regulation in the US, and, by extension, the founding principle of financial market regulation across the world. A former Dean of Harvard Law School (1937-1946), he was also a complex and in some ways tragic figure, whose glittering career collapsed following the revelation that he had failed to pay tax for a five-year period in the 1950s. The oversight was to cost possible elevation to the Supreme Court, forced prosecution and sentencing in 1963 to one month's imprisonment, commuted to forced hospitalization, and subsequent suspension of ability to practice.

Justin O'Brien argues that in rescuing from history Landis's battles and achievements in regulatory design, theory, and practice, we speak directly to the perennial problems in financial market regulation – how to deal with institutions deemed too big to fail, how to regulate the sale of complex financial instruments, and what role  the professions can play as gatekeepers of market integrity. He argues that in failing to learn from the lessons of history we limit the capacity of regulatory intervention to facilitate cultural change, without which contemporary responses to financial crises are destined to fail.

In a panel discussion, Dan Coquillette, Charles Warren Visiting Professor of American Legal History at Harvard Law School, discusses the abiding legacy of Landis's approach to legal design, while Todd Rakoff, the Byrne Professor of Administrative Law, evaluates what has happened to the conception of the administrative process as enunciated by Landis. Judge Jed Rakoff of the Southern District of New York discusses regulatory design questions.