Law Commons^™

Solving The Congressional Review Act’S Conundrum, Cary Coglianese

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Congress routinely enacts statutes that require federal agencies to adopt specific regulations. When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, for example, it mandated that the Securities and Exchange Commission (SEC) adopt an anti-corruption regulation requiring energy companies to disclose payments they make to foreign governments. Although the Dodd-Frank Act specifically required the SEC to adopt this disclosure requirement, the agency’s eventual regulation was also, like other administrative rules, subject to disapproval by Congress under a process outlined in a separate statute known as the Congressional Review Act (CRA).

After the SEC issued its …

The Political Dynamics Of Legislative Reform: Potential Drivers Of The Next Communications Statute, Christopher S. Yoo, Tiffany Keung

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Although most studies of major communications reform legislation focus on the merits of their substantive provisions, analyzing the political dynamics that led to the enactment of such legislation can yield important insights. An examination of the tradeoffs that led the major industry segments to support the Telecommunications Act of 1996 provides a useful illustration of the political bargain that it embodies. Application of a similar analysis to the current context identifies seven components that could form the basis for the next communications statute: universal service, pole attachments, privacy, intermediary immunity, net neutrality, spectrum policy, and antitrust reform. Determining how these …

How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman

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The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …

Secured Transactions Law Reform In Japan: Japan Business Credit Project Assessment Of Interviews And Tentative Policy Proposals, Megumi Hara, Kumiko Koens, Charles W. Mooney Jr.

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This article summarizes key findings from the Japan Business Credit Project (JBCP), which involved more than 30 semi-structured interviews conducted in Japan from 2016 through 2018. It was inspired by important and previously unexplored questions concerning secured financing of movables (business equipment and inventory) and claims (receivables)—“asset-based lending” or “ABL.” Why is the use of ABL in Japan so limited? What are the principal obstacles and disincentives to the use of ABL in Japan? The interviews were primarily with staff of banks, but also included those of government officials and regulators, academics, and law practitioners. The article proposes reforms of …

The Runaway Presidential Power Over Diplomacy, Jean Galbraith

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The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot specify what the policy of the United States is with respect to foreign corruption, cannot bar a technology-focused agency from communicating with China, cannot impose notice requirements for withdrawal from a treaty with Russia, cannot instruct Treasury officials how to vote in the World Bank, and cannot require the disclosure of a trade-related report. And these are just a few of many examples from recent years. The President’s assertedly exclusive …