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 […]
We are at the dawn of a new age of Open Finance. Open Finance seeks to harness the potential of new platform technology to enhance customer data access, sharing, portability, and interoperability—thereby leveling the informational playing field and fostering greater competition between incumbent financial institutions and a new breed of financial technology (fintech) disruptors. According […]
This Article tests the claims of supporters of stakeholder capitalism (“stakeholderism”) in the context of the COVID pandemic. Supporters of stakeholderism advocate encouraging and relying on corporate leaders to use their discretion to serve stakeholders such as employees, customers, suppliers, local communities, and the environment. The pandemic followed and was accompanied by peak support for, […]
Lawmakers, regulators, consumer advocates, and the business community have focused increasing attention on the policy issues that arise at the intersection of privacy, technology, and commerce. Yet the law governing what businesses can do with consumer data remains unsettled and unclear. The United States has no dedicated and comprehensive privacy law, relying instead on a […]
The Federal Reserve is a monetary authority subject to minimal executive and judicial oversight. It also has the power to create money, which permits it to disburse funds without drawing on the U.S. Treasury. Since 2008, it has leveraged this power to an unprecedented extent. It has rescued teetering financial conglomerates, purchased trillions of dollars […]
Since 1950, Congress has granted chairs of many multimember commissions chief-executive authority as a way to increase administrative efficiency. Although it intended to maintain the ability of commission majorities to dictate policy, it inadvertently strengthened the authority of chairs to such an extent that majorities cannot enact their preferred policies without their chair’s cooperation. Using […]
In McGirt v. Oklahoma, the Supreme Court held that the eastern half of Oklahoma was Indian country. This bombshell decision was contrary to settled expectations and government practices spanning 111 years. It also was representative of an increasing trend of federal courts recognizing Indian sovereignty over large and economically significant areas of the country, even […]