Regular readers of this blog may have been following along with us here at “Notice and Comment” as we have reported on the twists and turns of litigation challenging the constitutionality of hiring procedures for administrative law judges in the Securities and Exchange Commission. On April 23, the litigation’s fascinating path will culminate in Supreme […]

Regulation by litigation has been the dominant regulatory modality in U.S. corporate law for over a century. But that model is in crisis. The shareholder suit, the trigger of the state law-dominated, fiduciary duty-based model of regulation, has been drawn into disrepute. The crisis is most apparent in merger suits, which have been brought against […]

Earlier this week, in response to concerns that President Trump might fire Special Counsel Robert Mueller, Republican Senators Jeff Flake and Lindsey Graham warned that such a move might precipitate impeachment. Of course, Senators cannot impeach the president. The power of impeachment lies solely with the House.  Current conventional wisdom suggests that the House of […]

Tax specialists normally don’t focus on financial stability and financial regulators and analysts typically do not focus on taxes. This is too bad because the corporate tax structure affects financial stability and does so significantly, as we analyze in this article. The reason is simple: tax rules influence the capital structure choices of corporations in […]

I have adapted this post from a forthcoming law review article that will appear in the Administrative Law Review this September entitled When Text and Policy Conflict: Internal Whistleblowing Under the Shadow of Dodd-Frank. You can view the article here. Background After the economic meltdown following the 2008 financial crisis, Congress enacted the Dodd-Frank Wall […]

President Trump has recently complained that Senate Democrats have prevented his nominees from getting confirmed.  Even though the Senate eliminated the 60-vote threshold to end a filibuster on a nominee, the Senate still requires 30 hours of debate before voting on the nominee.  While Republicans have been willing to devote 30 hours of floor time for higher-level […]

From the New York Times: Cass Sunstein, the Harvard law professor known for bringing behavioral science to bear on public policy (not to mention for writing a best-seller about “Star Wars”), has won Norway’s Holberg Prize, which is awarded annually to a scholar who has made outstanding contributions to research in the arts, humanities, the […]

Last month I participated in a fascinating symposium hosted by the Center for Compliance Studies at Loyola University Chicago School of Law. The topic was “What is the Role of a Regulation if it is Not Enforced?” As background, in 2017 I studied waivers and exemptions for the Administrative Conference of the United States. That […]

Since Attorney General Sessions delivered his speech last week at the Federalist Society’s National Student Convention, there has been a lot of talk about nationwide injunctions—injunctions that prohibit the government from enforcing a law against anyone, as opposed to only against a particular plaintiff. While many people have talked about granting these injunctions, one thing that I […]

The Freedom of Information Act (“FOIA”) makes “agency records” available to the public upon request, but leaves the term “agency record” undefined. In Forsham v. Harris, 445 U.S. 169 (1980), the Supreme Court ruled that FOIA did not reach documents created and held by government contractors. Later, in U.S. Dep’t of Justice v. Tax Analysts, […]