The Unwritten, Evolving, But Enforceable Law

The Dodd-Frank Bill, a sweeping revision of dozens of laws regulating finance and credit--the lifeblood of the American economy--passed in 2010, outsourced much of Congress' discretion to regulators. Four years later, many of the hundreds of rules proposed by the bill have yet to be written by regulators in the Obama Administration. As critics predicted, the regulatory system has been in chaos for years as a result of Dodd-Frank. One critic of the legislation, law professor David Skeel, observed in the bill a "government partnership with the largest Wall Street banks and financial institutions" and "a system of ad hoc interventions by regulators that are divorced from basic rule-of-law constraints". That the rules remain unwritten burdens the economy with uncertainty. This law may explain why banks are hoarding, instead of lending, unprecedented amounts of money as the international economy contracts. Also, the unwritten nature of the law may enable ex post facto and arbitrary regulatory enforcement. In other words, Americans (ie. those in finance), may be culpable for non-compliance with an as-yet unwritten regulations. Note: ex post facto laws were expressly prohibited by the Constitution.  A couple of years ago, the argument was made that Congress must pass an unpopular law before we would know what is in it; in contrast, Dodd-Frank was passed before it was really written.