Law Commons^™

Leidos And The Roberts Court's Improvident Securities Law Docket, Matthew C. Turk, Karen E. Woody

Karen Woody

For its October 2017 term, the U.S. Supreme Court took up a noteworthy securities law case, Leidos, Inc. v. Indiana Public Retirement System. The legal question presented in Leidos was whether a failure to comply with a regulation issued by the Securities and Exchange Commission (SEC), Item 303 of Regulation S-K (Item 303), can be grounds for a securities fraud claim pursuant to Rule 10b-5 and the related Section 10(b) of the 1934 Securities Exchange Act. Leidos teed up a significant set of issues because Item 303 concerns one of the more controversial corporate disclosures mandated by the SEC—an …

Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody

Karen Woody

This Article analyzes a recent Supreme Court case, Lorenzo v. Securities and Exchange Commission, and explains why it provides a valuable window into the Court's future now that Justice Kennedy has retired and his seat filled by Justice Brett Kavanaugh. Lorenzo is an important case that raises fundamental interpretative questions about the reach of federal securities statutes. But most significant is its unique procedural posture: when the Supreme Court issues its decision on Lorenzo in 2019, Justice Kavanaugh will be recused while the other eight Justices rule on a lower court opinion from the D.C. Circuit in which he wrote …

Private Wealth And Public Goods: A Case For A National Investment Authority, Robert C. Hockett, Saule T. Omarova

Robert C. Hockett

Much American electoral and policy debate now centers on how best to reignite the nation’s economic dynamism and rebuild its competitive strength. Any such undertaking presents an extraordinary challenge, demanding a correspondingly extraordinary institutional response. This Article proposes precisely such a response. It designs and advocates a new public instrumentality--a National Investment Authority (“NIA”)--charged with the critical task of devising and implementing a comprehensive long-term development strategy for the United States.

Patterned in part after the New Deal-era Reconstruction Finance Corporation, in part after modern sovereign wealth funds, and in part after private equity and venture capital firms, the NIA …

Administrative Lawmaking In The Twenty-First Century, Jeffrey Pojanowski

Jeffrey A. Pojanowski

It is always hard to map a river while sailing midstream, but the current state of administrative law is particularly resistant to neat tracing. Until the past few years, administrative law and scholarship was marked by pragmatic compromise: judicial deference on questions of law (but not too much and not all the time) and freedom for agencies on questions of politics and policy (but not to an unseemly degree). There was disagreement around the edges-and some voices in the wilderness calling for radical change-but they operated within a shared framework of admittedly unstated, and perhaps conflicting, assumptions about the administrative …

Introduction: Comparative Papers From The Administrative Law Discussion Forum, Russell L. Weaver

Russell L. Weaver

Abstract

Deference To Agency Interpretations Of Regulations: A Post-Chevron Assessment, Thomas A. Schweitzer, Russell L. Weaver

Russell L. Weaver

No abstract provided.

Alj Support Systems: Staff Attorneys And Decision Writers, Russell L. Weaver

Russell L. Weaver

No abstract provided.

Administrative Searches, Technology And Personal Privacy, Russell L. Weaver

Russell L. Weaver

No abstract provided.

Administrative Searches And Seizures: What Happened To Camara And See?, Mark A. Rothstein, Laura F. Rothstein

Laura Rothstein

In recent years the Government's efforts in promoting health, safety and welfare have necessitated an increased number of administrative inspections of commercial and noncommercial premises. Although such inspections were previously held to be excluded from the fourth amendment's ban on unreasonable searches and seizures, the Supreme Court held in Camara v. Municipal Court and See v. Seattle that administrative inspections must comply with the warrant provision of the fourth amendment. Since those decisions, the Court has emphasized the exceptions to, rather than the strictures of, the warrant requirement. This article analyzes developments in the law concerning administrative searches and seizures …

Toll-Free Assignment Modernization And The Triumph Of Coase, Daniel A. Lyons

Daniel Lyons

No abstract provided.

To Narrow The Digital Divide, The Fcc Should Not Simply Extend Lifeline To Broadband, Daniel A. Lyons

Daniel Lyons

No abstract provided.

The Congressional Review Act And The Toxic Politics Of Net Neutrality, Daniel A. Lyons

Daniel Lyons

No abstract provided.

The Antideficiency Act Charade: A Low-Key Separation Of Powers Drama, Daniel A. Lyons

Daniel Lyons

No abstract provided.

E-Rulemaking And The Politicization Of The Comment Process, Daniel A. Lyons

Daniel Lyons

No abstract provided.

Revisiting Net Neutrality, Daniel A. Lyons

Daniel Lyons

No abstract provided.

The Administrative Law Of Deregulation: The Long Road For The Trump Administration To Undo Obama-Era Regulations, Daniel A. Lyons

Daniel Lyons

No abstract provided.

The Right Way To Protect Privacy Throughout The Internet Ecosystem, Daniel A. Lyons

Daniel Lyons

No abstract provided.

287(G) Agreements In The Trump Era, Huyen Pham

Huyen T. Pham

No abstract provided.

Narrowing The Digital Divide: A Better Broadband Universal Service Program, Daniel Lyons

Daniel Lyons

Universal service has long been an integral component of American telecommunications policy. As more activities move online, it becomes increasingly important to narrow the digital divide by helping low-income Americans get online and by extending broadband networks into unserved areas.

Unfortunately, the Federal Communications Commission’s reforms are unlikely to help solve this problem. The Commission is repurposing an $8 billion telephone subsidy program to focus instead on broadband networks. But when pressed, the agency admits that it has no proof that the program meaningfully affected telephone adoption rates, and it offers little evidence that it will fare any better at …

The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey

Jocelyn Stacey

This article argues that environmental issues confront us as an ongoing emergency. The epistemic features of serious environmental issues – the fact that we cannot reliably distinguish ex ante between benign policy choices and choices that may lead to environmental catastrophe – are the same features of an emergency. This means that, like emergencies, environmental issues pose a fundamental challenge for the rule of law: they reveal the necessity of unconstrained executive discretion. Discretion is widely lamented as a fundamental flaw in Canadian environmental law, which undermines both environmental protection and the rule of law itself. Through the conceptual framework …

The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy's Unbearable Licence, Jocelyn Stacey

Jocelyn Stacey

This short reply clarifies and defends the argument presented in "The Environmental Emergency and the Legality of Discretion in Environmental Law." It responds to the arguments that were made, and that could have been made, in Pardy's critique "An Unbearable Licence".

Can Pragmatism Function In Administrative Law?, Jocelyn Stacey, Alice Woolley

Jocelyn Stacey

This article draws out the ways in which Justice Rothstein grappled with complexity in administrative law. It argues that Justice Rothstein took a pragmatic approach to complexity in administrative law. Specifically, he sought to articulate a framework for judicial review that was workable for administrative decision-makers, litigants, their lawyers and reviewing courts. In addition, he looked to past experience with judicial review, evidenced in judicial precedent, rather than focusing on abstract theoretical norms.

An Error Of Law And The Credibility Of The Civil Resolution Tribunal, Douglas C. Harris, Sophie Marshall

Douglas C Harris

No abstract provided.

“Bullets Of Truth”: Julian Assange And The Politics Of Transparency, Mark Fenster

Mark Fenster

Feed: State Transparency Amidst Informational Surplus, Mark Fenster

Mark Fenster

Dual Regulation Of Insurance, Christopher French

Christopher C. French

State Immunity And The Patent Trial And Appeal Board, Tejas N. Narechania

Tejas N. Narechania

Reason-Giving, Rulemaking, And The Rule Of Law, Donald J. Kochan

Donald J. Kochan

Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan

Donald J. Kochan