Brian D. Feinstein

Brian Feinstein and Jennifer Nou (2022), Submerged Independent Agencies, University of Pennsylvania Law Review.

Peter Conti-Brown and Brian Feinstein (2022), Banking on a Curve: How to Restore the Community Reinvestment Act, Harvard Business Law Review.

Abstract: The federal government’s primary financial-regulatory tool for combating wealth inequality is broken. Intended to push banks towards deeper engagement with lower-income and minority communities, the Community Reinvestment Act (CRA) of 1977 has failed to meaningfully reduce the prevalence of “banking deserts” across lower-income communities or to reduce the racial wealth gap. As regulators circulate a proposed overhaul and the prospect of generational reform appears within reach, there is a danger that the CRA’s current moment in the sun will pass without the law being substantially improved. This Article argues that the roots of the CRA’s problems are supervisory: bank examiners have severely skewed CRA examination scores to presume success in community lending. The Article documents, for the first time, the extreme grade inflation in examinations, with 96 percent of banks receiving one of the top two ratings. Given the persistence of underinvestment in lower-income and minority communities, that result beggars belief. As a corrective, banks should be graded on a curve, with a certain percentage of institutions slotted in most grade categories—including, importantly, the categories that prevents banks from pursuing new business opportunities. This reform—which, to maximize its effectiveness, should be enacted in tandem with a collection of other measures designed to discourage regulatory arbitrage—would enable the CRA to fulfill its promise: to expand access to credit, spur investment in overlooked areas, and combat racial inequities through the financial system.

Brian Feinstein, William Heaston, Guilherme Siqueira de Carvalho (2022), In-Group Favoritism as Legal Strategy: Evidence from FCPA Settlements, American Business Law Journal.

Abstract: Anti-corruption laws aim to bolster public integrity by punishing attempts to illegitimately curry favor with government decision-makers. These laws, however, can generate integrity risks of their own. This Article examines one such risk: that firms subject to scrutiny under the Foreign Corrupt Practices Act (FCPA) may attempt to influence prosecutors by exploiting shared political leanings or related socio-cultural ties. Drawing on social psychology, we theorize that FCPA defendants retain defense attorneys that are ideologically aligned with Justice Department officials. This behavior is consistent with a strategy of marshaling affective polarization—i.e., the psychological tendency for individuals to view more favorably those that share their political beliefs—to defendants’ advantage. Alternatively, it may reflect defendants’ related belief that they benefit from retaining counsel that share social or cultural ties with prosecutors, where these ties happen to aligned with political orientation. Under either explanation, the strategy of hiring aligned counsel may be particularly auspicious in FCPA matters, in which prosecutors engage in subjective, trust-based assessments of defendants’ self-investigatory efforts, typically with minimal judicial oversight. We test this theory by matching attorneys listed on court filings for all FCPA matters over eighteen years with a database of individuals’ political views based on their patterns of political donations. This analysis reveals that defendants tend to hire more liberal attorneys during Democratic administrations and more conservative attorneys during Republican presidencies. They also are more likely to hire liberal attorneys when Justice Department prosecutors lean left and conservative ones when prosecutors lean right. These findings are consistent with our theory that FCPA defendants select counsel based on perceived benefits of their alignment with government officials. That possibility is noteworthy given the importance of shielding anti-corruption enforcement from even the perception of improper influence. In light of these findings, we offer policy prescriptions aimed at increasing transparency and judicial oversight of FCPA matters to mitigate integrity risks.

Brian Feinstein and Abby Wood (2022), Divided Agencies, Southern California Law Review.

Brian Feinstein (2022), Identity-Conscious Administrative Law: Lessons from Financial Regulators, George Washington Law Review.

Peter Conti-Brown and Brian Feinstein (2021), The Contingent Origins of Financial Regulation, Washington University Law Review.

Brian Feinstein and Kevin Werbach (2021), The Impact of Cryptocurrency Regulation on Trading Markets, Journal of Financial Regulation.

Brian Feinstein and M. Todd Henderson (2021), Congress’s Commissioners: Former Hill Staffers at the S.E.C. and Other Independent Regulatory Commissions, Yale Journal on Regulation.

Kevin Werbach and Brian Feinstein, Don’t Fear Cryptocurrencies. Manage Them in New York Times, April 14, 2021.

Brian Feinstein and Daniel Hemel (2020), Outside Advisers Inside Agencies, Georgetown Law Journal.