*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. This essay was originally published in Administrative & Regulatory Law News, the quarterly magazine of the American Bar Association’s Administrative Law and Regulatory Practice Section. Visit here to become a Section member. The Biden Administration has proposed revising the government-wide […]
To open bank accounts, new customers provide personal information and make a deposit. Within a few minutes (or perhaps a few days), new customers get access to payment services. For many years, the process financial institutions used to open accounts at Federal Reserve Banks was similar. Eligible banks filled out a one-page form and within […]
This Article identifies problems and opportunities at the intersection of mergers and acquisitions (M&A) and corporate crime and compliance. In M&A, criminal successor liability is of particular importance, because it is quantitatively less predictable and qualitatively more threatening to buyers than successor liability in tort or contract. Private successor liability requires a buyer to bear […]
Rate-regulated public utilities own and operate one-third of U.S generators and nearly all the transmission and distribution system. These firms receive special regulatory treatment because they are protected from competition and subject to rate caps. In the past decade, they also have been at the center of high- profile corporate scandals. They have bribed regulators […]
While the rise of dual-class companies—companies like Facebook, Google, and Visa, which have two or more classes of common stock that differ in voting rights—has been widely observed over the past decade, prior commentators have largely overlooked the important “equal treatment” agreements that are embedded in many dual-class charters. Equal treatment agreements require that stockholders are treated […]
Although the whistleblower programs (WBPs) created by Dodd-Frank have received universal acclaim, little is known about how they actually work. In 2021, the Securities and Exchange Commission (SEC) received an average of forty-nine whistleblower tips every workday. Success depends on sifting through this avalanche of tips to determine which ones to investigate. To date, however, […]
“Public interest” standards in statutory delegations to agencies represent the greatest hopes and the darkest fears of the U.S. administrative state. On the one hand, the public interest standard provides a vessel for agencies to infuse policymaking with the moral and ethical commitments of the community. On the other hand, regulation in the public interest opens […]
For a few short years starting in 1865, the Freedmen’s Bureau exercised regulatory power over labor markets in a fashion unprecedented in ambition, scope, and reach in U.S. history up to that point—and, arguably, since. The Bureau used its broad authority to construct, regulate, and coordinate labor in the post-slavery South according to a racial-egalitarian vision […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. I was pleased to see the new proposed Circular A-4 acknowledge right up front that the “[r]egulatory analysis [it] describe[s] does not supplant any analytic requirements . . . set out in the statutes that authorize or require agency […]
Electromagnetic radio spectrum is the fuel that powers the American commercial wireless industry. And this commercial wireless industry, in turn, powers the American economy with advanced 5G connectivity, ranging the full gamut from facilitating remote work and telemedicine to helping utilities manage their grids more efficiently and allowing farmers increase the productivity of their crops and […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. Circular A-4 should include a mandatory process of robust and transparent pre-proposal public collaboration for rules that remain subject to review under the revised EO 12866 guidance. Multiple executive orders subsequent to EO 12866 have required more substantive collaboration with affected persons, […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. A comparison between the current Circular A-4 and the draft revised Circular A-4 publicized for comment by the Office of Management and Budget (OMB) shows that many of the proposed revisions are small textual changes that seem at first blush merely […]
There is considerable buzz that the demise of Chevron is at hand. The Court expressly teed up the issue when it granted certiorari in Loper Bright Enterprises v. Raimondo, No. 22-451 (U.S. May 1, 2023). In part, the Court agreed to consider whether it “should overrule Chevron.” Loper, though, may warrant more than mere buzz; it could prove far more significant than […]
This Article presents original results from a large-scale study of environmental violations. I use the universe of civil Clean Air Act environmental violations by stationary emitters of pollution to test the effectiveness of EPA enforcement. Using conservative assumptions, I find that in 36% of cases, it is profitable for firms to violate the Clean Air […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. For the most part, Executive Order 14,094 (“the Order”) closely follows in the footsteps of President Biden’s January 2021 memorandum on “Modernizing Regulatory Review” (“the Memorandum”). For instance, it is no surprise that the Order features both updated methodology for cost-benefit […]