Distributed financial technologies (DFT) and protocols are gaining a foothold in important payment and settlement applications in global markets. The software developed by Ripple is one example of an enterprise solution for financial institutions that improves the efficiency of their cross-border payments. However, robust DFT must be paired with clear commercial rules that define and […]
Through his seminal work on transaction costs, Nobel laureate Ronald Coase highlighted key frictions that prevent organizations from relying exclusively on market transaction to achieve their goals. Uncertainty, asymmetric information and the risk of moral hazard, by undermining the ability to write complete and effective contracts, force organizations to internalize operations and depend on more […]
People involved in FinTech live in a world of “what if?”, “how about?” and “why not?”. They gaze into an unknown future filled with unlimited possibilities for a more efficient and inclusive global financial system. But that future may also pose potentially devastating risks that are beyond the control of policy-makers. Nowhere is this dichotomy […]
As new uses of blockchain technology become more varied and appealing, the issue of appropriate regulatory structure is a common legal theme. Blockchain delivers a secure, tamper-evident digital evidence structure. Blockchains combine distributed computer networks and cryptography to make a better way of storing and proving who did what when. From a functional legal perspective, […]
On March 3, 2017, industry leaders, policymakers, and academics converged at Yale Law School to discuss blockchain, a technology that some believe has the potential to disrupt current modes of providing core financial services and transacting in capital markets. Over the course of the day, panelists debated the opportunities created by blockchain adoption, as well […]
As part of this blog’s symposium on the ABA Section of Administrative Law and Regulatory Practice’s recent Report to the President-Elect, Bernie Bell has written a thoughtful commentary on the ABA’s 2016 proposals to revise the Administrative Procedure Act. I have something of a stake in those proposals, because I successfully presented them to the […]
The gap between textbook administrative law and actual practice exists in many areas, but perhaps nowhere more so than with respect to the so-called independent agencies. In theory, such agencies operate “independent” of the control and direction of the President. In practice, the White House has myriad mechanisms to oversee and even to control these […]
In A Report to the President-Elect of the United States 2016, the ABA’s Section of Administrative Law and Regulatory Practice calls attention to the opportunity to enhance to the efficiency of, and satisfaction with, the outcomes of agency adjudications by expanding the government’s commitment to using ADR techniques. Any discussion of ADR in the context […]
A fraught area in recent times has been the unwillingness of the political executive to accept scientific findings generated in the civil service or in the academy in the face of controversy over regulatory matters on which they bear. Issues about “bending science” became particularly acute during the second Bush presidency, when political refusals to […]
In any incoming Administration there are two unique appointments which could have a significant impact on the ultimate success or failure of an Administration, the Director of OMB and the leader of one of its component offices—the Office of Information and Regulatory Affairs, OIRA. The former helps develop and enforce Presidential policies using the annual […]
The press and regulated entities have been asking many questions about the status of regulations issued under the Obama Administration, and whether and how they might be revised or repealed when the Trump Administration takes office. These questions arise in four major areas — Executive Orders, Midnight Rules, application of the Congressional Review Act, and […]
On February 8, 2016, the ABA adopted recommendations to revamp the APA’s informal rulemaking provision, 5 U.S.C. § 553. In its Report to the President-Elect, the ABA Section on Administrative and Regulatory Law has urged the Trump administration to endorse those revisions (pages 10-11). The provisions have been summarized previously in this blog here. Section […]
This blog post is one in a series of posts discussing the 2016 Report to the President-Elect that American Bar Association’s Section of Administrative Law and Regulatory Practice issued shortly before the presidential election. In this post, I will discuss the recommendation that the President ensures that all agency guidance documents are made available online […]
In the ABA Administrative Law Section’s Report to the President-Elect, one finds a rather familiar recommendation: that the agencies undertake “careful, in-depth retrospective review of existing rules.” I call this a “familiar” recommendation, because President-elect Trump’s predecessor called for such a retrospective review in his own Administration. In early 2011, after the mid-term elections, President Obama […]
Proposals for regulatory reform featured prominently in the run-up to the 2016 election and will likely continue to receive very close attention in the new administration. As Emily Bremer highlighted in her introduction to this symposium, the American Bar Association’s Section of Administrative Law and Regulatory Practice prepared a report for both presidential candidates in […]