Finding the Value in Financial Failure

Wayne A. Abernathy

March 1, 2018

Title II of Dodd-Frank—written in law as secondary, a recourse to the bankruptcy process—has been criticized by some for being punitive, prone to destroy value, and by others as too vulnerable to use in propping up failed firms that should be removed from the financial playing field.

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Reading Past The Headline In OMB’s Report To Congress

Eileen J. O'Connor

February 28, 2018

As required by the Regulatory Right to Know Act, enacted in 2000, the Office of Management and Budget submits an annual report to Congress outlining the costs and benefits of regulations issued the previous year.  It appears, from the latest report, issued in draft form last Friday, that the benefits of regulations in effect the past ten years are three to eight times their costs.

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Further Reflections on the Oil States Case after Oral Argument Before the Supreme Court

Richard Epstein

February 23, 2018

Oil States gives the Supreme Court the chance to stop a process that has already run off the rails. And if it does not, Congress should take steps to restore the proper constitutional balance.

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Outstanding New Article on “Disparate Impact” and School Discipline

Roger B. Clegg

February 13, 2018

Gail Heriot and Alison Somin have written an important article that will appear in the Texas Review of Law & Politics, “The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline:  Wrong for Students and Teachers, and Wrong on the Law.”

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The Truth about DOL’s Tip Pooling Proposal

Tammy McCutchen

February 5, 2018

“Employee advocates” are objecting to the DOL’s tip pooling proposal, but one wonders why they are advocating for front-of-the-house employees at the expense of back-of-the house workers.

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DC Circuit Decision on CFPB Leadership

Julius “Jerry” Loeser

January 31, 2018

Today, the U.S. Court of Appeals for the District of Columbia, sitting en banc, issued its decision in PHH Corporation, et al. v. Consumer Financial Protection Bureau, on whether the provision in the Dodd-Frank Act  that the director of the CFPB cannot be removed by the President for any reason other than “inefficiency, neglect of duty, or malfeasance” is consistent with Article II of the Constitution vesting executive power in the President who is to “take care that the Laws be faithfully executed.”

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The Taiwan Fair Trade Commission’s Problematic Qualcomm Decision Highlights the Urgent Need for U.S. Leadership in International Antitrust

Joshua D. Wright

December 13, 2017

The TFTC’s Qualcomm decision clearly demonstrates the urgent need for further steps and continued leadership from American antitrust agencies.

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Attorney General Directs DOJ to Stop Circumventing APA

Susan Dudley

November 20, 2017

In remarks to the Federalist Society’s National Lawyers Convention on Friday, Attorney General Jeff Sessions announced new Department of Justice policy on issuing guidance “or similar instruments of future effect by other names, such as letters to regulated entities.”

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Using Tax Reform to Reveal the Hidden Cost of the Administrative State

J. Kennerly Davis, Jr.

November 14, 2017

Regulatory compliance costs impose an enormous burden on the American economy, a hidden tax that we all must pay in higher prices and smaller paychecks.

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The Supreme Court Tackles Patent Reform

Richard Epstein

October 27, 2017

Oil States Energy Services, LLC v. Greene’s Energy Group, LLC is the most important intellectual property case to come before the Supreme Court in many years. It challenges some of the innovative dispute resolution provisions of the 2011 American Invents Act (AIA) the most significant legislative reform of patent law since the Patent Act of 1952. Oil States assumes its vast significance because its outcome will determine, perhaps for decades, the litigation framework for all future patent disputes.

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