Bulletin

Bulletin

Bulletin

Regulatory Reform in the Trump Era—The First 100 Days

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Introduction Within the first 100 days of his administration, President Donald J. Trump initiated a bold regulatory reform agenda intended to downsize the imprint and reduce the influence of the federal government. Through a series of executive orders, supported by guidance from the Office of Management and Budget (OMB), and his proposed budget to Congress, […]

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Why the Bank Examination Privilege Doesn’t Work as Intended

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Introduction Bank examinations are one of the key tools used by federal regulators to supervise the banking and financial services industry. A bank examination is a dialogue between a regulator and a bank about the bank’s policies and practices. Confidentiality is crucial to making this dialogue work. As such, publicizing examination records could inhibit candid […]

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Constitutional Avoidance and Presidential Power

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Introduction Recent developments have brought renewed attention to statutes designed to constrain and discipline the President. The federal anti-nepotism statute, the federal conflict of interest statute, and the Federal Advisory Committee Act all appear set to endure unusual stress in the coming years. Troublingly, these statutes have already been given limited constructions that weaken their […]

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Give Gorsuch a 21st Century Litmus Test

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Introduction The United States Senate began confirmation hearings on March 20 to vet Neil Gorsuch, who was nominated to succeed the late Supreme Court Justice Antonin Scalia. Lawmakers are expected to apply litmus tests, probing him on issues such as abortion. They should also delve into his views on technology. As Wired’s political reporter Issie […]

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No Country for Cybersecurity Arbitrage

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Introduction On October 28, 2016, regulations issued by the Copyright Office exempted a wide swath of cybersecurity research from the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). These regulatory exemptions were motivated by assertions that the DMCA anti-circumvention prohibitions hinder cybersecurity research and practice. This article investigates the accuracy of these claims by […]

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Navigating Conflicting Roles: The Ethical Obligations of an Organization’s Lawyers Post-Wells Fargo

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Introduction Government-initiated enforcement actions aimed at exposing white-collar crime have proliferated considerably following the recent financial crisis. To get ahead of these investigations, many organizations hire in-house or external counsel to conduct their own preliminary investigations. These internal investigations create significant issues for lawyers who must provide to employees they interview an “Upjohn warning”—a disclosure […]

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What Shareholder Proposals on Proxy Access Tell Us About its Value

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Introduction Proxy access is the ability of certain privileged shareholders to have their own slate of director nominees included in the company’s proxy materials whether or not the board of directors (“Board”) approves. These materials include a proxy statement used to solicit shareholder votes and a voting card allowing shareholders to vote without having to […]

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Iterative Energy Policy: Resisting An Apology (Book Review)

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Book Review Steve Isser, Electricity Restructuring in the United States: Markets and Policy from the 1978 Energy Act to the Present (Cambridge Univ. Press 2015) Most energy law scholars have a general sense of the piecemeal fashion in which energy law and policy have unfolded in the past several decades. Notwithstanding the lack of a […]

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How King v. Burwell Creates Tax Problems for Consumers and What The Treasury Can Do About It

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After the Supreme Court agreed to hear King v. Burwell, a case addressing whether taxpayers can receive Section 36B premium tax credits for health insurance policies purchased on federally established exchanges (“federal policies”), commentators have expressed concerns about a potential death spiral in the health insurance market. Under the worst case scenario, the absence of […]

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Abstinence in the Face of the Mutual Fund Debt Elixir: In Response to Professor John Morley

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In recent years, a combination of bruising market losses, increased correlation among asset classes, unexpected illiquidity and high-profile scandals has left the investment management industry reeling. In the wake of the Great Recession, asset managers find themselves scrambling to respond to significant shifts in investor behavior and an evolving regulatory landscape. Two of the most […]

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What Do Subprime Securitization Agreements Say About Mortgage Modification?

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This paper presents the results of the only publicly available empirical study of what agreements governing subprime securitized mortgages say about mortgage modifications. The mortgage and foreclosure crisis continues to transfix the nation, even as housing markets across the country show signs of improvement. The government has tried to promote mortgage modifications to allow homeowners […]

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What Is Government Failure?

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The phrase “government failure” as a term of art originated in the critique of government regulation that emerged in the 1960s. This critique premised that “market failures” were the only legitimate rationale for regulation. Although the phrase is a popular currency in scholarship and politics, people attribute to it different values. As a result, all […]

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Moving Forward with Regulatory Lookback

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President Obama has rightly called on government agencies to establish ongoing routines for reviewing existing regulations to determine if they need modification or repeal. Over the last two years, the White House Office of Information and Regulatory Affairs (OIRA) has overseen a signature regulatory “lookback” initiative that has prompted dozens of federal agencies to review […]

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The Need for New Federal Anti-Spam Legislation

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The CAN-SPAM Act of 2003 was passed in an attempt to stop “the extremely rapid growth in the volume of unsolicited commercial electronic mail” and thereby reduce the costs to recipients and internet service providers of transmitting, accessing, and discarding unwanted email. The Act obligates the senders of commercial email to utilize accurate header information, […]