Journal of Business & Securities Law最新文献

{"title":"Ice Skating up Hill : Constitutional Challenges to SEC Administrative Proceedings","authors":"Thomas Glassman","doi":"10.2139/SSRN.2641178","DOIUrl":"https://doi.org/10.2139/SSRN.2641178","url":null,"abstract":"Since the inception of the Dodd-Frank Act the Securities and Exchange Commission has come under fire for its increased use of administrative proceedings in adjudicating the agency’s enforcement actions. That criticism has come to several suits in federal court claiming constitutional challenges to the system generally and most recently, the Administrative Law Judges themselves. Until June of 2015, when Hill v. the SEC took place in federal court, the Government was unbeaten in when arguing against these constitutional challenges. Hill, however found that it was likely the SEC had hired their Administrative Law Judges unconstitutionally. The SEC Administrative Law Judges have progressively been given more power through Congressional legislation and the question became whether these judges were mere employees, or inferior officers under the executive branch. While I think it is likely that an appellate court would uphold such an interpretation, I do not think it will lead to less SEC administrative proceedings and could potentially cause financial harm to those with cases currently in such a proceeding.","PeriodicalId":114268,"journal":{"name":"Journal of Business & Securities Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114268839","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lessons from SEC v. Citigroup: The Optimal Scope for Judicial Review of Agency Consent Decrees","authors":"D. S. Lund","doi":"10.2139/SSRN.2246033","DOIUrl":"https://doi.org/10.2139/SSRN.2246033","url":null,"abstract":"On November 28, 2011, Judge Jed S. Rakoff of the United States District Court in Manhattan declined to approve a consent judgment between the Securities and Exchange Commission (SEC) and Citigroup. Because Citigroup had not admitted or denied the allegations in the consent decree, Judge Rakoff concluded that he was unable to make an informed judgment about the merits of the settlement. Judge Rakoff’s decision has met with serious criticism from legal observers and rekindled discussion about the scope of judicial review of agency consent decrees, which have become a valuable agency enforcement tool. This paper attempts to articulate a clear standard of review focused on agency disability caused by a misalignment of interest or inadequate information. The concrete and deferential standard described in this paper would maintain an important gate-keeping function for the court without unduly interfering with agency policy. And a restricted inquiry, focused on conflicts of interest and adequate consideration, is appropriate given the limited institutional competence of the judiciary. The judiciary is not well situated to evaluate the terms of a settlement, which is the product of a complex balancing of agency priorities and is informed by the agency’s overall strategy and policy objectives. It is difficult to see what advantages a judge with a heavy caseload can add to a deal brokered by an agency staff charged solely with promoting the public interest in a particular area. By contrast, judges can be alert to conflicts of interest, as they are in other areas of the law. When evaluating an agency’s structure and information, the reviewing judge is not at an informational disadvantage relative to the parties. As a result, the court can determine whether the agency is properly accounting for social costs and benefits, and can ensure that the agency is not ignoring an important third party interest. Absent any indication of conflict or structural impairment, and given a reasonable justification for the settlement, the judge need not scrutinize the merits of the settlement and incur the costs of judicial review.","PeriodicalId":114268,"journal":{"name":"Journal of Business & Securities Law","volume":"339 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122920853","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Taking the Series LLC Seriously: Why States Should Adopt This Innovative Business Form","authors":"M. Pohl","doi":"10.2139/ssrn.2907690","DOIUrl":"https://doi.org/10.2139/ssrn.2907690","url":null,"abstract":"...................................................................................209","PeriodicalId":114268,"journal":{"name":"Journal of Business & Securities Law","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117041949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}