LARC Cardoso Law (Yeshida Univ)
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From Classroom to Incarceration: Dissecting the School to Prison Pipeline
Get PDFhttps://larc.cardozo.yu.edu/flyers-2023-2024/1117/thumbnail.jp
Moot Court Honor Society: Information Session
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Enhancing Public Access to Agency Law
Get PDFA just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. Although detailed and sometimes technical, these recommendations can be encapsulated in one simple, succinct principle: All legal materials that agencies are obligated to disclose upon request under the Freedom of Information Act should be affirmatively made accessible to the public on agency websites.
Our specific recommendations fall into three main categories: clarification and expansion of the types of legal materials that agencies must disclose affirmatively; specification of the methods of disclosure that will ensure ready accessibility to the public; and establishment of mechanisms that will help ensure agency compliance with these affirmative disclosure requirements. If a democratic government is to be truly transparent, then all its legal materials should be easily available to the public. Congress should take the steps needed to ensure that administrative agencies more consistently and affirmatively disclose all their legal materials in a manner accessible to all
Professor Rebecca Ingber Appointed to Serve on Venice Commission
Get PDFProfessor Rebecca Ingber has been appointed by the U.S. government to serve as one of two U.S. members to the Council of Europe’s European Commission for Democracy through Law. The Venice Commission, as it is better known, serves as an advisory commission on constitutional matters, democracy, human rights, and the rule of law for the Council of Europe and states around the world.https://larc.cardozo.yu.edu/cardozo-news-2024/1003/thumbnail.jp
Cardozo Law News Brief: May 31, 2024
Get PDFFeatured Faculty: Jessica Roth Alexander Reinert Saurabh Vishnubhakat Lindsay Nash Michel Rosenfeld
Campus News: Dean Melanie Leslie Announces 6 New Faculty Appointments Cardozo Welcomes Over 200 Alumni Back to Campus For Homecoming & Reunion Cardozo Celebrates Public Service at 32nd Annual Inspire! Award
Market Virtues and Respect for Human Dignity
Get PDFLuigino Bruni and Robert Sugden have provided a normative defense of markets from a virtue ethics perspective. They interpret market exchange as being a practice in the sense of Alasdair MacIntyre. For Bruni and Sugden, the telos of a market is mutual benefit and a market virtue is a character trait or disposition that contributes to the realization of this benefit. They regard market virtues as embodying a moral attitude towards market interactions that is characterized by reciprocity. For MacIntyre, this is a partial account of a virtue. To qualify as a virtue, it is also necessary that it contributes to the good of an individual’s life taken as a whole and to the social tradition in which both practices and individuals are embedded. We adopt MacIntye’s understanding of a virtue and consider the extent to which Bruni and Sugden’s account of market virtues is compatible with respecting the fundamental human good of dignity in Kant’s sense of this term.https://larc.cardozo.yu.edu/faculty-chapters/1106/thumbnail.jp
Crypto-Native Credit Score: Between Financial Inclusion and Predatory Lending
Get PDFDecentralized credit scoring has surfaced as a new approach in the ever-evolving consumer credit space. While drawing parallels to traditional credit scoring, decentralized credit scoring sets itself apart by evaluating the financial activity and behavior of users within the blockchain ecosystem. Blockchain technology has been fueling this transformation and serving as the backbone for a diverse range of financial products and services collectively known as decentralized finance (DeFi). DeFi lending, in particular, has been thriving in recent years. However, the pseudonymous nature of blockchain, coupled with the inherent volatility of cryptoassets, has resulted in the absence of reliable means of risk assessment for DeFi loan processing. Consequently, a common practice of relying on overcollateralized loans has emerged, limiting access to DeFi loans only to those with substantial collateral.
In the face of this challenge, enterprising DeFi lending protocols sought a transformative solution and introduced crypto-native credit scoring. By tapping into blockchain data, crypto-native credit scoring aims to bridge the gap in risk assessment, rendering DeFi lending more robust and inclusive. While decentralized credit scoring has been touted as safer, more trustworthy, and equitable, we find that it may not be as promising as it has been made out to be.
This Article demonstrates how DeFi loans were heavily promoted to the same disadvantaged populations that have experienced exclusion and bias in the traditional finance system and sought out a more equitable alternative. It argues that crypto-native credit models, which currently operate without regulatory oversight and are met with slow regulatory responses, present new fairness, accountability, and transparency harms that have yet to be identified and addressed by legal commentary. These harms include potential predatory practices by DeFi lending protocols requiring borrowers to overcollateralize their loans to build credit history. This Article further underscores the crucial role of the Consumer Financial Protection Bureau in overseeing decentralized credit scores and the involvement of financial influencers. These influencers, which have been operating without much regulatory attention, are increasingly shaping investment choices, particularly among underprivileged and financially excluded populations
Condensing the Alphabet Soup: Missed Administrative Rulemaking Concerns in \u3ci\u3eU.S. Securities & Exchange Commission v. Alpine Securities Corporation\u3c/i\u3e
Get PDFFor decades, the political landscape in the United States, characterized by deadlock in Congress and increasingly polarized relations among the country’s major political parties, has put the responsibility of keeping the government functioning in the hands of the administrative state. An absence of regular, substantive legislation (and a President willing to sign the bills given to her by Congress into law) leaves the advancement of meaningful policy to the rulemaking functions of federal executive agencies. Agency rules, developed pursuant to Congressional commands, aim to ensure that private industries will keep air and water clean, make sure drugs are safe, and, among other things, not play fast and loose with America’s finances. Accordingly, as society becomes more complex, agencies are frequently responsible for developing a plethora of rules that can satisfactorily stand up to every intricacy that arises.
In the face of a looming stalemate with Congress in 2014, former President Obama famously said, “I’ve got a pen, and I’ve got a phone” to drive his administration’s policy goals forward. Subsequently, both the Trump and Biden administrations regularly ordered agencies to work toward advancing policy goals where Congress was unable to provide substantive solutions. Nonetheless, there is often heated debate over whether the administrative state has too much power and needs to be substantially reeled in. Recently, the Supreme Court’s decision in West Virginia v. Environmental Protection Agency, in addition to restricting the Environmental Protection Agency’s (EPA) effort to effectively combat climate change, called the future of the entire administrative state’s potency into question by effectively establishing a judicial veto over agency actions not explicitly authorized by Congress that would have previously been awarded substantial deference.
In the age of an increasingly dense administrative state, it is very attractive to have a system of reasonable practices to promulgate agency rules more efficiently. It is also important to have a regulatory landscape that is as clear and easily navigable as possible. At what point, though, do those goals cause tension with one another? Does the call for efficiency and collaboration create a situation that makes compliance more difficult and cumbersome?
One sector subject to an extremely elaborate and dense federal regulatory scheme is financial services, and rightfully so. Congress passed the Securities Act of 1933 and the Securities Exchange Act of 1934 (Exchange Act) to protect investors following the 1929 stock market crash that led to the Great Depression. Similarly, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act following the 2008 financial crisis. These three Acts, as well as the other federal laws regulating the financial industry, have the monumental task of safeguarding the economic wellbeing of the public by promoting efficient and fair capital markets. Tasked with carrying out and enforcing these laws, agencies like the Commodity Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC) developed and regularly update thorough and complex sets of rules designed to encourage frequent disclosure and prevent broker-dealers from taking advantage of members of the investing public. In 2020, the Second Circuit examined the scope of the SEC’s regulatory and enforcement authority in SEC v. Alpine Securities Corp. The court’s decision raised questions regarding the validity of certain rulemaking practices. The SEC sought enforcement of its Rule 17a-8, which incorporates separate Treasury regulations by reference. The ensuing litigation from the SEC’s enforcement action raised concerns over whether the Commission was inappropriately enforcing the Treasury’s rules and whether the incorporation by reference and automatic updating of rules from other agencies violates the Administrative Procedure Act (APA). Both questions were effectively unanswered by the Second Circuit Court of Appeals.
This Case Note argues that the Second Circuit’s decision opens the door to a new kind of federal agency rulemaking that can skirt the requirements outlined in the APA and create overlapping enforcement regimes for violations of regulations. This Case Note further argues that incorporation by reference of regulations promulgated by other administrative agencies is inappropriate in the rulemaking process. Finally, this Case Note proposes that when an agency would like to defer to the rules of another, it should borrow from the existing text when writing its own rule, thus both simplifying the regulatory landscape and remaining within the bounds of the APA’s requirements.
This Case Note proceeds in five Parts. Part I provides the background of the relevant statutes and regulations at issue. It also discusses the federal administrative rulemaking practices that will be important in this Case Note’s analysis of the Second Circuit’s holding in SEC v. Alpine. Part II describes the facts and procedural history of the case. Part III describes the issues on appeal, the Second Circuit’s holdings and rationales, as well as the arguments presented by each side. Part IV of this Case Note discusses the lingering questions created by the Second Circuit’s holdings. Part IV then analyzes the arguments regarding who has appropriate enforcement authority of the Currency and Foreign Transactions Reporting Act of 1970, colloquially known as the Bank Secrecy Act (BSA), and discusses concerns over how the SEC constructed Rule 17a-8, incorporating another agency’s rules by reference. Lastly, Part V proposes that the practice of regulatory diffusion is the best solution for agencies looking to incorporate existing regulations into their own rules. This Case Note reiterates, in conclusion, that the Second Circuit’s holdings were erroneous and create more problems than they solve