Launched in 2012, the Yale Journal on Regulation Bulletin (JREG Bulletin) serves as an online companion to JREG’s print editions, publishing short and timely essays from legal academics, practitioners, and students. JREG Bulletin accepts submissions continually throughout the year.
We currently only accept electronic submissions of essays. Professors, practitioners, and students at schools other than Yale may submit their essay electronically by emailing a copy in Word format to Executive Managing Editor DJ Sandoval (firstname.lastname@example.org). Yale students should email their submission to Callum Sproule (email@example.com).
Volume 36 (2018-19)
In regulated industries, including telecommunications, electric power, and natural gas, there has been a dramatic substitution of price cap regulation (PCR) for rate-of-return regulation (RRR). Despite this sea change in regulatory regimes, the Hope Standard, which protects the regulated firm from confiscatory rates so that it remains a financially viable enterprise, continues to serve as the litmus test for whether a regulatory taking has occurred. This creates some tension between the economics and the law. The incentive properties of PCR are superior to those of RRR precisely because PCR breaks the link between allowed revenues and costs. This is problematic because the Hope Standard employs an earnings test to assess takings claims which requires relinking revenues and costs to measure financial returns. This Essay contends that if the desirable incentive properties of PCR are to be preserved, the law must recognize that a taking can occur even when the regulated firm’s returns are not confiscatory. This new standard integrates the traditional Hope Standard with a Sustainable Price Standard to ensure that (i) the regulated firm remains financially viable and (ii) earnings above confiscatory levels would no longer be sufficient to reject a taking claim.
Regulators have long been aware that differential access to information can undermine the efficiency and fairness of financial markets. In an effort to place investors on equal footing, the Securities and Exchange Commission in 2000 created Regulation Fair Disclosure (Reg FD), which prohibits public firms from disclosing material information to certain parties but not others. Nevertheless, managers have continued to meet privately with select investors, possibly sharing information in violation of Reg FD. A key weakness of Reg FD is that its definition of materiality remains unclear. Using a series of vignettes based on actual private investor meetings, I investigate how managers and regulators understand Reg FD. I find considerable uncertainty and disagreement among both managers and regulators as to what kind of information may be lawfully communicated. Many managers interpret Reg FD subjectively, often relying on individual industry norms to decide where to draw the line. Ultimately, the ambiguity of Reg FD leads to considerable variation in the information managers privately provide to investors, undermining the notion of a level playing field in financial markets.
The FDA recently published a list of top branded drug companies that are suspected of purposely blocking competition from the generic drug industry. Calling out big pharma by “naming and shaming” them into good behavior is an innovative, still largely experimental, regulatory tool designed to harness public opinion and build on pharma’s reputational sensitivities. This Essay analyzes the FDA’s new initiative as a form of regulation by shaming, points to crucial flaws in the agency’s use of the tactic, and suggests key points for improvement.
In a series of largely unnoticed but extremely consequential moves, two regional electricity market operators are pursuing reforms to make it more difficult for states to achieve their clean energy goals. The federal energy regulator, FERC, has already approved one such reform and ordered a second market operator to go farther in punishing state-supported clean energy resources than it had initially proposed. In this Essay, we bring to light the ways in which the intricate, technical reforms underway in regional electricity markets threaten state climate change objectives and the durability of FERC’s regional market constructs. If FERC allows private market operators to impose their policy preferences on participating states—or if FERC requires pro-fossil market designs—progress in decarbonizing the electricity sector will likely slow. At the same time, the potential for greater regional cooperation in electricity markets—a critical strategy for integrating a high penetration of renewable energy onto the electricity grid—will diminish.
Stock buybacks—transactions in which public companies buy back their own equity securities on the open market—are on track to reach $1 trillion in 2018. Such repurchases manipulate the market price for issuer securities. They represent a choice by firms to prioritize shareholder payouts over other uses of corporate funds, contributing to widening economic inequality. Currently, stock buybacks are regulated by the Securities and Exchange Commission’s Rule 10b-18, a “safe harbor” rule that does not ameliorate market manipulation. This Essay recommends a new regulatory regime, outlining several alternative approaches to ensure the integrity of capital markets and corporate productivity.
In late 2017, Congress passed the first major tax reform in over three decades. This Essay considers the constitutional concerns raised by Section 965 (the “Mandatory Repatriation Tax”), a central provision of the new tax law that imposes a one-time tax on U.S.-based multinationals’ accumulated foreign earnings. First, this Essay argues that Congress lacks the power to directly tax wealth without apportionment among the states. Congress’s power to tax is expressly granted, and constrained, by the Constitution. While the passage of the Sixteenth Amendment mooted many constitutional questions by expressly allowing Congress to tax income from whatever source derived, this Essay argues the Mandatory Repatriation Tax is a wealth tax, rather than an income tax, and is therefore unconstitutional. Second, even if the Mandatory Repatriation Tax is found to be an income tax (or, alternatively, an excise tax), the tax is nevertheless unconstitutionally retroactive. While the Supreme Court has generally upheld retroactive taxes at both the state and federal level over the past few decades, the unprecedented retroactivity of the Mandatory Repatriation Tax—and its potential for taxing earnings nearly three decades after the fact—raises unprecedented Fifth Amendment due process concerns.
The true-sale doctrine is central to the multi-trillion dollar asset-backed securities (ABS) market. The assets backing ABS are only bankruptcy-remote if they were assigned in a true sale, rather than as collateral for a loan, and it is the true-sale doctrine that distinguishes sales from loans. Despite its importance, the doctrine is inconsistent, lacks normative direction, and is under-theorized. Negotiations regarding the status of securitized assets in bankruptcy—affecting creditors such as employees, retirees, and tort claimants—happen in the shadow of the law. This Essay argues that state lawmakers should formulate true-sale rules that codify the relevance of price in true-sale analyses. The price that a company receives in exchange for securitized assets represents value with which to distinguish between problematic judgment-proofing on the one hand, and, on the other hand, assignments that isolate assets from bankruptcy in a way that is fair and produces efficiencies. Reforming the true-sale doctrine to ensure economic substance-based determinations that consider price terms could fortify unsecured creditors’ positions. In addition, such reform would reinforce appropriate boundaries between state commercial laws and federal bankruptcy policy.
In a deregulatory environment, what do regulated firms do? The standard assumption is simple: firms revert to their pre-regulatory form. This Essay challenges that basic assumption. Increasingly, regulation is conducted through broad standards foisted on firms to implement internally. Congress articulates a policy goal; agencies enact specific standards for regulated entities; and firms are left to sort out how to comply with such standards. Recent mandates in financial, privacy, and medical regulation exemplify this approach. Despite these changes, scholars have not turned their attention to how this new form of regulation changes the structure of the regulated entity. Using case studies and theoretical insights, this Essay hypothesizes that the structures firms create in a regulated environment will not immediately disappear in a deregulatory world. Rather, they will persist. Modern regulation causes firms to make department-specific investments and centralize information gathering. Firms accomplish this, in part, by increasing the presence of regulatory-related staff. And, once these investments are completed, they will insulate regulatory-related staff from immediate removal in a deregulatory environment. That is, in-house regulators will be sticky. This Essay aims to provide an array of theories to support this phenomenon.
2018 marks the sixtieth anniversary of the publication of Franco Modigliani and Merton Miller’s The Cost of Capital, Corporation Finance, and the Theory of Investment, which purports to demonstrate that a firm’s value is independent of its capital structure. Widely hailed as the foundation of modern finance, their article is little known by lawyers and legal academics even though it led to many major economic advances, such as agency costs and asymmetric information, recognized and used throughout the law today. The legal profession’s lack of familiarity with these Nobel Prize-winning authors and their work is not merely an oversight; it is a missed opportunity. When inverted, the Modigliani-Miller theorem describes the mechanisms through which capital structure can affect value. This “reverse” Modigliani-Miller theorem provides a powerful framework that can be extremely useful to legal academics, practicing attorneys, and judges.
Volume 35 (2017-18)
Recent years have seen a great deal of controversy over political control of communications by government scientists. Legitimate interests can be found on both sides of the equation. Clearly there is a strong public interest in the free flow of scientific information. On the other hand, political leaders in any administration might need advance notice of what government scientists plan to say, and they might also seek to control the timing of their presentations and announcements. Although many important questions remain to be addressed, this essay offers a first step towards a framework that is meant to accommodate these interests and that answers a series of concrete questions about when, and what kind of, political control is appropriate. The framework allows advance notice to political officials, including the White House, and also allows control over timing, without allowing censorship of the substantive content of scientific information.
This Essay examines the interplay between state statutes that created and regulate civil unions for same-sex couples and the landmark ruling in Obergefell v. Hodges. It observes Obergefell was silent on how to treat civil unions, and argues that Obergefell presents two competing definitions of marriage. These competing definitions expose the costs and legal complications queer Americans continue to bear in both family-formation and dissolution. The Essay contends these costs are mediated by the formal disjunction between substantive equality in Obergefell and the regulatory processes which incepted and proceeded it. The Essay concludes with a survey of developments in post-Obergefell litigation around civil unions.
Not every one of a judge’s actions is judicial. Judges also engage in administrative tasks, such as hiring personnel. In Ayestas v. Davis, the Court has been asked to decide a jurisdictional question that rests on whether a particular authority was conferred on judges in their administrative or judicial capacities. This Essay offers a resolution to the jurisdictional issue by looking at the underlying statutory provision. By examining the provision’s codification in the United States Code, interpreted in light of the codifier’s canon, it can be seen that the relevant authority is judicial in nature.
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, the President has attempted to change the calculus and methodology underlying the federal regulatory process. To enforce his far-reaching agenda, the President is establishing a new administrative framework that challenges conventions on government oversight and rulemaking within the Executive Branch.
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 communication between banks and regulators, and, in some cases, harm the subject institution. But preserving secrecy is difficult when a bank is involved in a lawsuit against a nongovernmental party. In many cases, a bank’s adversary will attempt to obtain the bank’s examination records in order to use them as evidence against the bank. Surprisingly, however, no federal statute or regulation fully addresses this problem.
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 power to restrain the President. Under the constitutional avoidance canon, courts construe statutes so as to avoid constitutional questions. Citing the avoidance canon and the President’s (sometimes merely arguable) constitutional prerogatives, courts have limited the scope of statutes meant to discipline the presidency. The application of constitutional avoidance in this context is uniquely troubling. The President is an active participant in the legislative process, and can use his veto power to protect his prerogatives for himself. As a result, judicial avoidance can greatly extend presidential power in a way that is difficult for Congress to reverse. The President’s unique powers also make the application of constitutional avoidance particularly problematic in this context.
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 Lapowsky noted, “[w]hile liberals [focus] on such contentious issues as women’s reproductive rights and environmental protections, Gorsuch will also face cases that demand a solid command of the complex issues digital technology raises, from copyright and privacy to intellectual property rights and data storage.” Although Gorsuch has a decade of experience serving as a judge on the U.S. Court of Appeals for the Tenth Circuit, he lacks an extensive record on tech-related cases and his decisions have been mixed, which should raise concerns about how he might decide such cases as a Supreme Court Justice.
Volume 34 (2016-17)
Volume 33 (2015-16)
In Steve Isser’s Electricity Restructuring in the United States, readers will find a rich resource that delves deeply into the story of energy law’s evolution. The book covers the particulars of nearly every development in U.S. energy law and policy related to electricity restructuring from 1978 until about 2014. It documents the kinds of details that are lost over time: names, squabbles, and strange bedfellows that contributed to energy law as we know it. For researchers, such details provide texture and an ample array of sources for further exploration.
The post-King v. Burwell oral-argument hubbub has focused on Justice Kennedy’s questions to counsel, which suggested that he was considering resolving the case in the government’s favor using the canon of constitutional avoidance. If the challengers’ reading of the ACA were correct, Justice Kennedy posited, the statute would impose a destructive subset of federal regulations on states that did not establish exchanges, which would be a forbidden attempt by Congress to “coerce” the states. However, the constitutional problem of coercion by regulatory threat is novel, and justifications for the modern avoidance cannon disintegrate where the problem being avoided is novel; therefore, the Court should use coercion aversion to resolve King only as a last resort.
Volume 32 (2014-15)
Commentators have expressed concern that a government loss in King v. Burwell will destroy the Affordable Care Act. In King, the Supreme Court might hold that taxpayers can enjoy tax credits only for policies purchased on exchanges established by a state and not for policies purchased on Healthcare.gov. That holding would jeopardize future enrollment and could lead to a “death spiral.” However, this discussion threatens to mask the potential tax problems facing persons who purchase policies this enrollment season. As this Essay explains, consumers who buy policies on Healthcare.gov this year may face a surprising tax bill when they complete their tax returns. Also, whether the Treasury has the power to protect these consumers, and whether it will exercise that power, remains uncertain.
Volume 31 (2013-14)
This short Response attempts to buttress the still nascent discussion surrounding mutual fund capital structure. Moreover, the Response encourages Professor Morley and the broader academic community to advance the examination of investment vehicles and their limitations in light of the evolving needs of to-day’s investing public. The seriousness and complexity of the subject matter, and its tangible ramifications for investors, necessitate a more thorough examination. And it is hoped that this Response plays some role in promoting that discussion.
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, to “clear[ly] and conspicuous[ly]” identify their emails as “advertisement or solicitation,” and to notify recipients of the opportunity to opt-out of receiving future emails. Once an individual has opted out, that sender is then prohibited from emailing them further. Despite high hopes, the Act has largely been considered a failure for four reasons.
The question of when a war exists has been extensively considered in international law, but the subject is greatly important in the regulation of government contracting because of the little-known Wartime Suspension of Limitations Act (WSLA). The Act declares that when the nation is “at war,” the statute of limitations on fraud committed against the United States government will not take effect. When the nation is at war, the general five-year statute of limitations on federal crimes can be extended without end for fraud in government contracting.
Critics of the Obama Administration’s recently announced efforts to control climate pollution seek to discredit the idea of existing power plant greenhouse gas emissions limits based on legal arguments that are both shortsighted and unfounded. These arguments have most recently appeared in an essay posted on the Yale Journal on Regulation Online by attorney Brian Potts, but some of the same ideas were put forward late last year by C. Boyden Gray, at a Resources for the Future Forum. Their basic premise is that the EPA doesn’t have the authority to regulate existing power plant greenhouse gas emissions at all. Mr. Potts also argues that the Agency is constrained by actions it already has taken under another program. This response argues that, contrary to the arguments put forward by Attorneys Potts and Gray, the EPA does have authority to regulate power sector greenhouse gas emissions using Clean Air Act section 111(d).
This Comment argues that plaintiffs have painted “club deals” with a broad brush as anticompetitive, whereas applying the facts alleged plaintiffs themselves to the antitrust regulators’ measurement of market concentration—the Herfindahl-Hirschman Index—implies a more nuanced conclusion: consortium bidding can be pro-competitive for large targets, small bidders and small clubs.
The government has tried to promote mortgage modifications to allow homeowners to stay in their homes. One particular focus of these efforts has been subprime loans that are securitized. For securitized mortgages, a contract called the pooling and servicing agreement governs what the servicer may do to modify the mortgages in the pool. Do these agreements forbid mortgage modifications, so that the most effective modification programs have to trump these agreements, raising all the issues that attend government modification of private contracts? Or do the agreements by and large permit mortgage modifications, so that policymakers designing modification programs should concentrate on other possible rigidities that frustrate modification?
The centerpiece of President Obama’s Climate Action Plan is to have the Environmental Protection Agency (EPA) issue carbon dioxide (CO2) standards for new and existing power plants, which account for roughly one-third of this country’s emissions. The new regulations are unlikely to cause any significant retirements of existing coal-fired power plants (the largest emitters by far ), and at best will lead to no more than about a five percent reduction in power plant emissions once fully implemented around 2020, as opposed to the 17% touted by the administration. This essay explains why the Clean Air Act – which governs the EPA’s ability to issue these standards – and more than forty years of federal court and EPA decisions interpreting the Act leave the EPA’s hands tied. This Essay will explain why.
Volume 30 (2012-2013)
President Obama has rightly called on government agencies to estab-lish 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 hundreds of regula-tions. This regulatory initiative represents a good first step toward increasing the retrospective review of regulation, but by itself will do little to build a lasting culture of serious regulatory evaluation. After all, past administrations have made similar review efforts, but these ad hoc exercises have never taken root. If President Obama is seri-ous about institutionalizing the practice of retrospective review, his Administration will need to take further steps in the coming years. This essay offers three feasible actions – guidelines, plans, and prompts – that President Obama’s next OIRA Administrator should take to move forward with regulatory lookback and improve both the regularity and rigor of regulatory evaluation.
The phrase “government failure” as a term of art originated in the critique ofgovernment regulation that emerged in the 1960s. This critique premisedthat “market failures” were the only legitimate rationale for regulation.Although the phrase is a popular currency in scholarship and politics, peopleattribute to it different values. As a result, all seem to expect the governmentto fail, many believe that government inaction cannot constitute a failure,and alleged failures tend to be disputed. This essay seeks to establish acoherent meaning for the term “government failure” and its relatives (e.g.,“government breakdown,” “regulatory failure”).
With President Obama’s nomination of Gina McCarthy as the new Administrator of the Environmental Protection Agency (EPA), much attention has turned to her record as the EPA official in charge of air pollution programs, experience as the head of two states’ environmental agencies, and views on specific policies and priorities. And with the President’s nomination of Sylvia Mathews Burwell to be the Director of the Office of Management and Budget (OMB), attention has likewise turned to her record and experience. Few recognize, however, the tight relationship between the two nominations: the Obama administration’s approach to governing will make Ms. Burwell Ms. McCarthy’s boss.
Some local communities in the United States, particularly in the Northeast, are scrambling to oppose natural gas production enabled by hydraulic fracturing (or fracing, fracking, or hydrofracking) in shale formations. Local opposition to the impacts of fracking is understandable, but recent proposals for national bans ignore a key, more potent threat. Due to a mismatch between the benefits and costs of fracking, on the one hand, and the distribution of political and legal influence, on the other, the voices of those opposed to extraction may drown out the more distant voices of those suffering from the widespread future effects of coal—the primary fossil alternative to gas. Energy policy processes must recognize the opportunity costs of banning gas, including the consequences of continuing to rely on coal as our primary electricity source. The negative environmental impacts of natural gas extraction must be addressed, and our focus on gas ought not to divert attention from the need to develop more sustainable energy alternatives. However, policymakers should not adopt the myopic view advocated by some anti-fracking activists. Rather, policymakers should formulate energy policies that fully weigh the costs and benefits of alternative courses of action and consider the interests of those under-represented in the policy process.
In 2011, Congress passed the Leahy-Smith America Invents Act (AIA) and reformed the U.S. patent system. Most significantly, the Act replaced the “first-to-invent” patent system with a “first-to-file” system. The law is now the subject of a constitutional challenge. In this short Essay, I will explore two obstacles to this challenge: one that I view as insurmountable and one merely very difficult.
People hold strong views about regulation, but do they know what “regulation” means? National Federation of Independent Business (NFIB) is a landmark in regulation jurisprudence, yet the NFIB Court was divided over the meaning of the term “to regulate.” Long ago, John Stuart Mill observed that “we do not [always] understand the grounds of our opinion. But when we turn to . . . morals, religion, politics, social relations, and the business of life, three-fourths of the arguments for every disputed opinion consist in dispelling the appearances which favor some opinion different from it.” The controversy and confusion about regulation illustrate the phenomenon. This Essay explores the meaning of the term “regulation.”
Sandy struck a strategically important city in a strategically important country within days of a strategically important election. Together with mounting scientific consensus that burning fossil fuels threatens to further destabilize the climate, the growing pattern of disasters like Sandy has finally brought climate change back into the public discourse. This essay calls for greater energy-climate-water security mindful of Sandy-scale disasters.
Over the past decade, operating costs in the hedge fund industry have ballooned as the rate of new institutional investment in hedge funds has rapidly accelerated. These new institutional investors are demanding greater portfolio and operational transparency, more conscientious compliance, and tighter internal controls. This correlation—between the institutionalization of hedge funds and their rising operating costs—can be explained by reference to the perverse incentives created by the prevailing principal-agent relationships of the industry. Because institutional investment managers put their reputations at risk through their investment decisions, they face higher “fraud costs” than the beneficiaries of the funds they manage (“retail investors”). They thus have an incentive to over-monitor their hedge fund investments in order to decrease the risk of fraud. The dramatic acceleration of institutional money entering the hedge fund industry has resulted in monitoring costs that are likely much higher than the real cost of fraud to ordinary retail investors. This inefficiency can be characterized as an agency cost of institutional investing.