*This is the introduction to a symposium on Orly Lobel’s The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future, selected by The Economist as a best book of 2022. All posts from this symposium can be found here. Further reviews can be found at Science, The Economist, and Kirkus. Consider these paradoxical […]
Section 553 of the Administrative Procedure Act, more commonly known as the notice-and-comment rulemaking process, is hailed as “one of the greatest inventions of modern government.”[1] In my forthcoming Article—prepared for the Annual Review of Administrative Law issue—I consider the innovative value of Section 553 from the perspective of two problems identified by economist Friedrich A. Hayek. To […]
The oral arguments this week in Biden v. Nebraska and Department of Education v. Brown on student debt cancellation gave the Supreme Court another opportunity to expand upon the major questions doctrine, which the Court formally gave life last term in West Virginia v. EPA, 142 S. Ct. 2587 (2022). Daniel Deacon and Leah Litman have criticized the “new” major questions doctrine’s reliance on political […]
During oral argument in Department of Education v. Brown, the second case concerning the Biden Administration’s student loan forgiveness plan, the question arose whether it is proper for a single district or circuit court to impose a nationwide injunction against a federal policy where doing so is not necessary to provide complete relief to the […]
Many lower federal courts hold that section 706(2) of the Administrative Procedure Act, 5 U.S.C. § 706(2), instructs courts reviewing agency regulations to vacate regulations that are unlawful as defined by that provision. Vacatur as the courts understand it is distinct from injunctions against enforcement proceedings and declaratory judgments. Unlike remedies that operate with respect […]
During the 116th Congress, the House Select Committee on the Modernization of Congress recommended that the Government Accountability Office (GAO) study the feasibility of establishing a congressional equivalent to the DOJ’s Office of Legal Counsel (OLC). OLC is the much discussed component of the Department of Justice that issues legal opinions binding on Article II actors. This study […]
Now that the United States Senate has reassembled for the 118th Congress after a brief hiatus, the upper chamber must promptly appoint President Joe Biden’s exceptional nominee Bradley Garcia to the United States Court of Appeals for the District of Columbia Circuit. The tribunal has become the second most important court in the United States, […]
In this Essay, we revisit our analysis in A Sober Look at SPACs and assess whether that analysis—based on the 47 SPACs that merged between January 2019 and June 2020—provided a basis on which to predict that the dilution embedded in the SPAC structure would lead to severe shareholder losses in subsequent mergers. We find […]
In 2002, after a series of accounting scandals involving Enron and WorldCom, Congress swiftly passed the Sarbanes-Oxley Act in an effort to restore investors’ confidence in the market. The passage of the Sarbanes-Oxley Act was a watershed moment in U.S. financial history, and Section 404—requiring management assessment and auditor attestation of internal controls of financial […]
When the Biden administration’s student debt relief plan comes before the Supreme Court next month, it could benefit from an unlikely ally: inflation. The administration has issued its discharge plan under the HEROES Act, a statute that permits the Secretary of Education to “waive or modify” federal student loan requirements in connection with a “national emergency”—here, the Covid-19 pandemic. But […]
*This is the eleventh and final post in a symposium on Morgan Ricks, Ganesh Sitaraman, Shelley Welton, and Lev Menand’s “Networks, Platforms, and Utilities: Law and Policy.” For other posts in the series, click here. Writing a book review, especially when that book weighs in at 1,200 pages, is an act of generosity. We are so […]
Crypto assets and the crypto-asset ecosystem have introduced novel legal challenges, many of which have reached the United States judicial system. In this Essay, I offer the first empirical analysis of all crypto-related cases litigated in the United States, analyzing the number of cases, types of disputes, and causes of actions, among other criteria. The […]
This Essay is part of Bulletin’s symposium on special purpose acquisition companies (SPACs). Please click here for an introduction by Professor John Morley putting the 2020 SPAC boom and the regulatory reform agenda into context. Introduction A remarkable fact about modern U.S. securities markets is that most public securities can be safely bought and held by investors who […]
This Essay is part of Bulletin’s symposium on special purpose acquisition companies (SPACs). Please click here for an introduction by Professor John Morley putting the 2020 SPAC boom and the regulatory reform agenda into context. Introduction This Essay lays out an economic substance approach to regulating special purpose acquisition companies (SPACs) as sales of stock for cash. The […]
This Essay is part of Bulletin’s symposium on special purpose acquisition companies (SPACs). Please click here for an introduction by Professor John Morley putting the 2020 SPAC boom and the regulatory reform agenda into context. The U.S. Securities and Exchange Committee’s (SEC) proposed reforms of how it regulates special purpose acquisition companies (SPACs) lean heavily on the most […]