The SEC’s Inferiority Complex, by Kent Barnett
CJW Note: In both academic and practitioner adlaw circles, there’s been chatter for a while about the constitutionality of the SEC using administrative law judges (ALJs) in its enforcement actions. On...
View ArticleImproved Economic Analysis in SEC Rulemaking?
As I’ve blogged about before, the role of cost-benefit analysis—and economic analysis more generally—in financial regulation has been a hot topic in recent years among scholars, policymakers,...
View ArticleJurisdiction(al) Matters: New York Republican State Committee v. SEC
I’ve been enjoying my co-blogger Aaron Nielson’s review of the DC Circuit’s cases. Perhaps some of this pleasure comes from my memories of clerking there, for the great Stephen F. Williams, the...
View ArticleSchwartz and Nelson on the SEC’s Regulation of Conflict Minerals
In Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011), the D.C. Circuit held that the SEC must justify all its regulations promulgated under the National Securities Market Improvement Act...
View ArticleWill Congress Make Rulemaking a Practically Impossible Task?
A bipartisan group in the Senate is working on a large package to reform the rulemaking process. Negotiations are ongoing but the New York Times reported last week that the package is likely to require...
View ArticleClass Action Not Withstanding, the SEC’s Use of Disgorgement Is Here To Stay,...
This past summer, in Kokesh v. SEC, the Court scaled back the SEC’s power to recover the profits earned by defendants’ illegal activities, holding that judicial disgorgement brought by the agency...
View ArticleThe SEC’s Subdelegated Appointments Power
Yesterday, the Securities and Exchange Commission (SEC) hedged its bets: it issued an order ratifying the prior appointments of its administrative law judges (ALJs). The order also called for fresh...
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The CFTC and SEC Are Demanding Unconstitutional Speech Bans in Their...
Many federal agencies have the authority to bring civil complaints against individuals accused of violating applicable statues or regulations. Those agencies also have the authority to enter into...
View ArticleRevisiting the Record on Removal
In April, the Supreme Court will hear oral argument in Lucia v. SEC to consider whether administrative law judges (ALJs) in the Securities and Exchange Commission (SEC) are “Officers of the United...
View ArticleA Regulatory Framework for Exchange-Traded Funds, by Henry T.C. Hu & John D....
The “exchange-traded fund” (ETF) is one of the key financial innovations of the modern era. Our article, A Regulatory Framework for Exchange-Traded Funds (forthcoming in Southern California Law Review,...
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