Category Archives: Symposia

Indexes, Delegated Management, and Corporate Governance, by Scott Hirst and Kobi Kastiel

by Guest Blogger — Wednesday, July 3, 2019

We are delighted to contribute to this symposium. Adriana Roberton’s article, Passive in Name Only, sheds important light on an overlooked but important part of the investment ecosystem, index providers. Our article, Corporate Governance by Index Exclusion, recently published in the Boston University Law Review, expands on the core message of Robertson’s article, that indexes […]

Delegating Portfolio Management to Index Creators: The Consequences for Corporate Governance, by Dorothy Lund

by Guest Blogger — Tuesday, July 2, 2019

The recent popularity of index investing and corresponding influx of assets into passively managed mutual funds has generated a large literature in law and in finance about the implications for securities markets, antitrust, corporate governance, and beyond. But few have explored the index landscape itself. Professor Robertson’s article is an important exception, and her findings—in […]

Soft Law Often Should be Permitted to Bind Agency Staff, by Peter L. Strauss

by Guest Blogger — Tuesday, May 14, 2019

For an event honoring the scholarship of Professor Bill Funk, another contributor to this on-line symposium, I have written an essay, Domesticating Guidance, summarizing my thinking about the use and misuse of agency guidance documents. No one doubts that that the soft law of guidance documents, which do not require notice and comment under the […]

Pursuing Parrillo’s Principled Flexibility, by Kristin E. Hickman

by Guest Blogger — Friday, May 10, 2019

Everyone familiar with the intertwined spheres of administrative law and regulatory practice knows that federal agencies routinely issue informal, subregulatory pronouncements, referred to collectively as “guidance,” articulating their views regarding the law’s requirements.  Agency use, and arguable abuse, of guidance to direct the behavior of regulated parties and agency employees is a perennial topic of […]

The Solution to Regulatory Ossification May Be Regulatory Cartilage, by Jamie Conrad

by Guest Blogger — Friday, May 10, 2019

Nick Parrillo’s publications are like Robert Caro’s – so synoptic, and so exhaustively researched, that it’s inconceivable that anyone could do a better job.  As a result, it’s a daunting prospect to quibble with any of his conclusions and recommendations – much less to dispute them fundamentally.  What’s more, as a practitioner – and one […]

The Binding Effect of Interpretive Rules, by Ronald M. Levin

by Guest Blogger — Thursday, May 9, 2019

Nick Parrillo’s article Federal Agency Guidance and the Power to Bind is a truly admirable study of the realities underlying agencies’ creation and use of guidance documents.  It will doubtless stand as a definitive examination of the practical factors that can cause informal agency pronouncements to exert coercive pressure on private persons, even when those […]

The Role of Guidance Documents in Agency Regulation, by Stuart Shapiro

by Guest Blogger — Thursday, May 9, 2019

The year 2019 may prove to be a landmark one for the question of the proper role of agency guidance documents (or “non-legislative rules”).  Within the next month or two, the Supreme Court will reach a decision on Kisor v. Wilkie where the question of judicial deference to agency’s interpretation of their regulations is at […]