Tag Archives: SEC

A Regulatory Framework for Exchange-Traded Funds, by Henry T.C. Hu & John D. Morley

by Guest Blogger — Wednesday, Apr. 4, 2018

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, vol. 91, no. 5, 2018), is the first academic work to show the need for, or to offer a regulatory framework for ETFs. The economic significance […]

Revisiting the Record on Removal

by Jennifer Mascott — Monday, Mar. 5, 2018@jennmascott

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 States.” If they are, the ALJs are subject to the Appointments Clause, requiring them to be appointed by the President, a department head, […]

The CFTC and SEC Are Demanding Unconstitutional Speech Bans in Their Settlement Agreements, by James Valvo

by Guest Blogger — Monday, Dec. 4, 2017

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 settlement agreements with the accused defendants. The Commodity Futures Trading Commission (“CFTC”) and Securities and Exchange Commission (“SEC”) both have a policy of requiring a provision in […]

The SEC’s Subdelegated Appointments Power

by Jennifer Nou — Friday, Dec. 1, 2017@Jennifer_Nou

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 proceedings in pending actions before these newly-blessed ALJs. The SEC did all of this to “put to rest” the argument — now pursued by the […]

Class Action Not Withstanding, the SEC’s Use of Disgorgement Is Here To Stay, by Daniel B. Listwa

by Guest Blogger — Thursday, Nov. 23, 2017

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 constitutes a penalty for the purpose of the 5-year statute of limitations in 28 U.S.C. § 2462. While the holding attracted some headlines, a […]

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Will Congress Make Rulemaking a Practically Impossible Task?

by Connor N. Raso — Tuesday, Jan. 26, 2016

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 agencies to engage in additional cost-benefit analysis that would be subject to judicial review. In joint work, I have argued […]

Schwartz and Nelson on the SEC’s Regulation of Conflict Minerals

by Andrew Hessick — Wednesday, Jan. 20, 2016@andyhessick

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 through cost benefit analysis. Cost-benefit analysis makes sense for many SEC regulations because they focus on easily quantified matters. But they make less sense […]

Jurisdiction(al) Matters: New York Republican State Committee v. SEC

by Peter Conti-Brown — Wednesday, Aug. 26, 2015

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 intellectual godfather of many an academic’s career—it’s a uniquely interesting place to clerk, with cases that can be at the core of some […]

Improved Economic Analysis in SEC Rulemaking?

by Christopher J. Walker — Wednesday, July 22, 2015@chris_j_walker

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, regulators, and the regulated. This debate has been sparked in part by the D.C. Circuit’s aggressive review of SEC rulemaking—in cases like Business Roundtable v. SEC and others—and […]

The SEC’s Inferiority Complex, by Kent Barnett

by Guest Blogger — Thursday, June 11, 2015

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 Monday a federal judge found such practice to likely be unconstitutional. One of my coauthors, Kent Barnett (UGa Law), has written extensively on ALJs (he’s quoted in the […]

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