Law Commons^™

Some Kind Of Hearing Officer, Kent H. Barnett

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In his prominent 1975 law-review article, “Some Kind of Hearing,” Second Circuit Judge Henry Friendly explored how courts (and agencies) should respond when the Due Process Clause required, in the Supreme Court’s exceedingly vague words, “some kind of hearing.” That phrase led to the familiar (if unhelpful) Mathews v. Eldridge balancing test, in which courts weigh three factors to determine how much process or formality is due. But the Supreme Court has never applied Mathews to another, often ignored facet of due process—the requirement for impartial adjudicators. As it turns out, Congress and agencies have broad discretion to fashion not …

Due Process For Article Iii—Rethinking Murray's Lessee, Kent H. Barnett

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The Founders sought to protect federal judges’ impartiality primarily because those judges would review the political branches’ actions. To that end, Article III judges retain their offices during “good behaviour,” and Congress cannot reduce their compensation while they are in office. But Article III has taken a curious turn. Article III generally does not prohibit Article I courts or agencies from deciding “public rights” cases, i.e., when the government is a party and seeking to vindicate its own actions and interpretations under federal law against a private party. In contrast, Article III courts generally must resolve cases that concern “private …

Towards Optimal Enforcement, Kent H. Barnett

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In Private Enforcement in Administrative Courts, Professor Michael Sant'Ambrogio argues that a hybrid private/public enforcement model in agency proceedings may provide the best hope of achieving optimal federal law enforcement. In other words, a blunderbuss approach of choosing public enforcement or private enforcement (whether in judicial or agency proceedings) is unlikely to prove ideal. He identifies various tools--such as agencies' role in the review or initiation of proceedings, or the use of class-wide proceedings--that Congress or agencies can use to calibrate agency enforcement to its optimal design. I consider three additional tools that may optimize enforcement goals with hybrid public …

Short-Circuiting The New Major Questions Doctrine, Kent H. Barnett, Christopher J. Walker

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In Minor Courts, Major Questions, Michael Coenen and Seth Davis advance perhaps the most provocative proposal to date to address the new major questions doctrine articulated in King v. Burwell. They argue that the Supreme Court alone should identify “major questions” that deprive agencies of interpretive primacy, prohibiting the doctrine’s use in the lower courts. Although we agree that the Court provided little guidance about the doctrine’s scope in King v. Burwell, we are unpersuaded that the solution to this lack of guidance is to limit its doctrinal development to one court that hears fewer than eighty cases per year. …

Avoiding Independent Agency Armageddon, Kent H. Barnett

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In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court invalidated Congress’ use of two layers of tenure protection to shield Public Company Accounting Oversight Board (PCAOB) members from the President’s removal. The SEC could appoint and remove PCAOB members. An implied tenure-protection provision protected the SEC from the President’s at-will removal. And a statutory tenure-protection provision protected PCAOB members from the SEC’s at-will removal. The Court held that these “tiered” tenure protections unconstitutionally impinged upon the President’s removal power because they prevented the President from holding the SEC responsible for PCAOB’s actions in the same …

The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett

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This article considers whether the Consumer Financial Protection Bureau Director’s appointment of the Bureau’s Deputy Director comports with the Appointments Clause. The Dodd-Frank Wall Street Reform and Consumer Protection Act established the Bureau in July 2010, as well as the offices of the Bureau’s Director and Deputy Director, to coordinate the regulation and enforcement of federal consumer-financial-protection laws. Under that act, the Director appoints the Deputy Director. The Appointments Clause permits “Heads of Departments” to appoint inferior officers like the Deputy Director. But it is unclear if the Bureau is a “department” and thus if the Director is a department …

The Last Male Bastion: In Search Of A Trojan Horse, Joan Macleod Heminway

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Numerous legal scholars and commentators have written about the paucity of women in the boardroom at influence-wielding U.S. public companies. Fewer have written about the scarcity of female Chief Executive Officers, and fewer yet have written about the relatively low numbers of female executive officers, at U.S. public companies.

This brief essay (an edited version of my remarks offered at the University of Dayton School of Law’s symposium on "Perspectives on Gender and Business Ethics: Women in Corporate Governance") does not endeavor to add to the collective understanding of observed gender disparities in boardrooms and the C-suite — the senior …

Reframing And Reforming The Securities And Exchange Commission: Lessons From Literature On Change Leadership, Joan Macleod Heminway

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As a reaction to perceived and actual regulatory failures at the Securities and Exchange Commission (the SEC), from mistakes that contributed to the financial crisis to the Bernard Madoff affair, the SEC has been engaged in an operational transformation process. The growing literature on management and leadership in times of change -- change leadership literature -- offers a number of potentially valuable lenses through which we may assess reform at the SEC.

With the thought that securities regulators and others may learn valuable lessons about the SEC’s restructuring and reorganization from experts in change leadership, this Article explores a selected …

Enron's Tangled Web: Complex Relationships; Unanswered Questions, Joan Macleod Heminway

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This essay originally was presented orally at the University of Cincinnati College of Law's Sixteenth Annual Corporate Law Symposium. The essay describes corporate agency and agency-related relationships as implicated in the "Enron affair" and explores ways in which the Sarbanes-Oxley Act of 2002 fails or attempts to address the alleged malfunctions in these relationships. The essay concludes that the reforms enacted in Sarbanes-Oxley provide little assistance in resolving agency and agency-related problems associated with Enron's public misstatements and omissions. Ultimately, the essay exhorts scholars and practicing lawyers to work together to resolve these problems through (among other things) additional research …

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

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No abstract provided.

Regulating The Regulators In New York State: Part I, Harold I. Abramson

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No abstract provided.

Regulating The Regulators In New York State, Part Ii: The Office Of Business Permits And Regulatory Assistance, Harold I. Abramson

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No abstract provided.