bepress Legal Repository
Not a member yet
645042 research outputs found
Sort by
The Economic Consequences of Hedge Fund Regulation: An Analysis of the Effect of the Dodd-Frank Act
No full textThis paper exploits registration data administered by the Securities and Exchange Commission to examine the effect of the Dodd-Frank Act on profitability, risk-taking, and capital formation in the hedge fund industry. The data show that after the act was implemented, there was a significant decline in investors’ profitability that can be at least partially attributed to direct compliance costs. However, compliance costs do not fully explain the results: part of the decline seems to be driven by collateral effects of compliance, particularly the diversion of managerial attention from core business activities and/or adjustments to financial valuation or reporting practices. The data also show that risk-taking did not change significantly and that although managers closed funds and launched fewer funds in response to the law, this behavior did not result in lower assets under management
Do Elections Really Have Consequences?: Presidential Indifference, Attenuated Accountability, and Policy Paralysis Within the Administrative State
No full textIn theory, the Constitution vests all, not some or most, of the executive power in the President; the buck supposedly stops at the Resolute Desk. Yet current practice falls well short of this constitutional ideal. The conjunction of fixed terms of office, good cause removal limits, and partisan balance requirements for the heads of multi-member independent federal agencies, boards, and commissions can and does leave critically important federal agencies effectively unaccountable to the President. Such a state of affairs existed at the Federal Communications Commission (FCC) from January 20, 2021, until September 25, 2023-over half of President Biden\u27s fouryear term of office-because the agency featured a 2-2 partisan deadlock that prevented it from undertaking any contested policy initiatives. Worse still, this deadlock arose because of defeated-President Donald Trump\u27s appointment of a Republican FCC Commissioner in December 2020. Nathan Simington\u27s FCC appointment to a term of office that extends to 2024, and conceivably until January 2027, made a mockery of the idea that elections have policy consequences and effectively hobbled the FCC under President Eiden until he succeeded in appointing a fifth Democratic Party-affiliated commissioner.
A serious accountability problem arises when an Executive Branch agency is not subject to meaningful presidential control and oversight-an accountability problem that also raises serious separation of powers issues. When a multi-member federal agency lacks a majority of members who support the incumbent presidential administration\u27s regulatory policies and priorities, it becomes entirely implausible to posit that the President can actually supervise its activities ( and reprimand its failures to act as well). Worse still, such circumstances permit the President to have his cake and eat it too by blaming the agency\u27s inaction on his lack of an effective ability to supervise the agency and its work. Even if such a state of affairs might be politically convenient for the President, it cannot be reconciled with a unitary executive model for the presidency. After all, the buck does not stop with the President if the President cannot exercise meaningful day-to-day control and supervision over an agency\u27s work.
If we truly have a unitary executive, then the President must enjoy meaningful supervisory powers over, and hence accountability for, all major executive branch agencies that wield significant policymaking authority-and this authority should exist from day one of the President\u27s term of office. Unfortunately, although the Federal Vacancies Reform Act (VRA) permits the President to name acting principal officers to cabinet departments and presidentially controlled agencies, the law expressly prohibits such acting appointments to any and all federal agencies that feature a multi-member head. This needs to change. Under the VRA, if the President may constitutionally appoint an acting Secretary of State or Attorney General who may exercise the vast, full powers of the office (despite lacking the Senate\u27s advice and consent) no good reasons exist for denying the President an identical power with respect to multi-member federal agencies. Indeed, a single member of a multi-member agency cannot act alone for that agency-rendering such acting appointments more plausibly inferior in character-and thereby reducing any separation of powers concerns. Accordingly, Congress should reform the VRA to empower the President to make acting appointments to independent federal agencies-and thus render it impossible for the President to disclaim the ability to take Care that the Laws be faithfully executed
Conflicts and Confluences between Surface and Mineral Estates in CCUS
No full textCarbon capture, utilization, and storage (CCUS) presents a new way of using an old resource: the subterranean rock structures and their interstitial “pore” space that make up the subsurface of the earth. Injecting carbon into these structures also raises a number of new legal questions about their ownership and the relations between the owners of the structures and the owners of other subsurface resources contained within them, like oil and gas, coal, coalbed methane, and geologically native carbon dioxide. This Article explores these new legal questions and the conceptual difficulties they present with the aim of guiding participants in CCUS projects about the state of the law and its many open questions. Drawing on previous scholarship and analogies from oil and gas law, the Article suggests answers to, or at least ways of thinking about, several of the open questions. Specifically, this Article addresses the following: (1) ownership of subsurface rock structures and pore space under private, federal, and state-owned lands in the United States; (2) the respective rights and duties of the owners of pore space and mineral interests in the same tract of land; and (3) conflicts that may arise between pore space and mineral owners when CCUS projects are conducted alongside (a) oil and gas development, (b) coal mining and coalbed methane extraction, and (c) geologic carbon dioxide production
The Gate Keepers of Trucking Safety: Keeping Motor Carriers Accountable For Their Negligent Employment Actions
No full textIn an America which has become more dependent than ever on the transportation industry, a common law rule known as the McHaffie rule barricades the tort system from its candid operation. Americans trust the tort system with assessing and distributing fault among numerous actors in complicated factual scenarios. For the system to do this, all the facts and all the parties must be permitted to traverse through the tort system. The McHaffie rule, however, allows motor carrier principals a rather peculiar luxury: the dismissal of all direct negligence claims against them when they admit vicarious liability for their driver agents. Under the McHaffie rule, the negligent management actions of a motor carrier in their hiring, training, and supervision practices of drivers never see judicial nor juror scrutiny. The McHaffie rule allows motor carriers to prioritize the satisfaction of consumers at home over the safety of travelers on the road. This Comment examines the context and arguments for and against the McHaffie rule and concludes that courts should eliminate or, at a minimum, narrow the rule to truly duplicative claims
Out of Hand: Why Federal Protection of Biometric Privacy is a Pressing Issue in U.S. Employment
No full textThe practice of using biometric identifiers such as fingerprints, facial recognition, and eye scans in place of usernames and passwords is becoming widespread in the workplace. Because of the lack of federal protection, employers may compel employees’ participation in biometric-enabled systems as a term of employment. A person’s biometric data cannot be replaced and is often linked to personal and financial accounts. Additionally, employers collecting biometric data often rely on third parties for information technology service and storage. Biometric data collection creates the potential for data breaches, for system malfunctions, and for third parties to learn additional information about the person surrendering biometric data. Federal regulation of employers’ collection of biometric data is critical because of the magnitude of the risks inherent to data breaches and the continual encroachment of technology on privacy interests in the workplace. This Comment examines the evolution of conceptions of privacy and the law, and state regulation of personal and biometric data under the Illinois Biometric Information Privacy Act and the California Consumer Privacy Act to demonstrate the critical need for federal regulation of biometric data, particularly within employment. After pointing out the inadequacies of these Acts discussed as applied to the workplace, this Comment suggests a series of mandatory federal procedures that would better safeguard employees’ privacy. Employers should be subject to policies that increase transparency of biometric data retention, inform employees of potential risks before enrolling, provide time for consideration, and offer alternatives
