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The SEC and Major Questions Doctrine Questions
Get PDFNearly two years ago, in the wake of the Supreme Court’s formal adoption of what it termed the “major questions doctrine,” the Wall Street Journal reported a prediction that “‘every corporate securities lawyer in America is going to now fashion their arguments against SEC rulemaking to force-fit it into [that doctrine].’” As articulated by the sharply divided 6- 3 majority in West Virginia v. EPA, major questions doctrine (MQD) analysis is warranted in certain “extraordinary cases” involving a “transformative expansion” in a federal agency’s regulatory authority that is premised on “a merely plausible textual basis for the agency action.” Extraordinariness, however, is to be determined not only by the extent of the ambiguity that plausibly allows for the “‘breadth of the authority that [the agency] has asserted.’” It is also a function of the assertion’s absence of “history” and its vast “‘economic and political significance.’” In such MQD cases, to overcome a court’s “skepticism” as to whether Congress intended to delegate the asserted authority, the agency must point to a “‘clear congressional authorization’ to regulate in that manner.”
This prediction about the influx of MQD challenges to SEC rulemaking has already proven correct, and because many recently adopted SEC rules require public companies to disclose information about financial risks involving certain hot-button environmental, social, and governance (ESG) matters, much of the force-fitting is directed at new ESG disclosure rules. After examining the MQD in Part I of this Article, Part II identifies and analyzes two important questions relating to the SEC and the doctrine: (A) Is it likely that SEC disclosure rules will survive MQD challenges? and (B) Will other types of SEC rules and orders be more vulnerable to the MQD? To both questions, my answer is yes.
The heart of the Article is therefore Part II—analysis of the MQD in the context of SEC disclosure rules—in line with this symposium’s focus on “The Future of ESG.” My principal argument is that the Supreme Court’s reasoning in West Virginia does not warrant a federal court’s application of the MQD to a disclosure rule that the SEC adopts to further its trifold mission—namely, to protect investors; maintain fair, orderly, and efficient markets; and promote capital formation. In view of the explicit disclosure authority that the SEC has been exercising in specified contexts for ninety years, SEC disclosure rules cannot fairly be said to involve the assertion of any “highly consequential power beyond what Congress could reasonably be understood to have granted.” I therefore conclude in Part II.A that the SEC’s disclosure determinations do not constitute “extraordinary cases” that warrant MQD analysis.
Yet, as I explain in Part II.B, other SEC rules, adopted pursuant to congressional authorizations unrelated to securities disclosure, could be more vulnerable to MQD challenges. SEC rules will be at their most vulnerable when the SEC’s delegated authority stems from open-ended statutory provisions that are not confined to particular contexts. Accordingly, if a future SEC were ever to issue a “transformative” rule premised on the broad general exemptive authority that Congress granted in 1996, a principled application of the MQD should result in the invalidation of such a sweeping deregulatory measure
Conjuring the Flag: The Problem of Implied Government Endorsements
Get PDFThis Article exposes a harmful form of advertising that exploits government actions like patent issuances, FDA authorizations, and trademark registrations. By calling upon the symbolic power of such regulatory approvals—i.e., “conjuring the flag”—marketers deceive consumers, distort competition, and undermine administrative agencies. Using machine-learning techniques to analyze hundreds of ads across multiple media formats, this Article offers the first comprehensive analysis of this pervasive practice. The study reveals that it is especially prevalent in industry settings where consumers are likely to seek reassurance that a product is safe and effective. Specifically, the examples examined show that patents are mentioned frequently in ads for supplements, cleansers, cosmetics, insect sprays, and hair products. It also shows that the USPTO contributes to the problem by registering trademarks that incorporate regulatory references. Consumer protection laws and regulations have failed to curb this practice, as advertisers have found subtle and legally permissible ways to manipulate consumer perception. This Article proposes two legal reforms to empower the FTC to address this issue more effectively, and suggests measures to better facilitate class action suits. This Article thus sheds light on a crucial intersection of intellectual property, consumer protection, and administrative law
Free tax assistance available at the Maurer School of Law through March 26
Get PDFSome Monroe County residents and Indiana University students can receive free assistance with their 2023 federal and state tax returns at the Maurer School of Law as part of the Volunteer Income Tax Assistance (VITA) program
Comparative Intellectual Property & Religion
Get PDFThis Article introduces religion to comparative IP scholarship and explains how faith-based considerations can enhance it. Comparative IP scholars have extensively studied different IP laws in different jurisdictions, but they seemed to suggest an erroneous view that comparative IP and religion are like two parallel lines without intersection. Building on these scholars’ work, this Article discusses religion’s role in fostering a new vehicle for discussion and a new normative lens with the aim of ascertaining the existence and extent of religion in legal systems, serving as part of the comparison methodology between legal systems with potential for influencing the policy debates within U.S. legal systems. In addition to proposing the enhancement of comparative IP scholarship with religion, this Article helps to solve the problem of the lack of congruity between legal systems by finding surprising possibilities of functional equivalents and functional similarities. In a nutshell, the IP laws of many modern countries are substantially influenced by religion in various dimensions, even though religion’s role may differ in different domains
Maurer School of Law professor, IU vice president elected president of the American Society of Comparative Law
Get PDFThe American Society of Comparative Law has elected Indiana University Maurer School of Law Professor Hannah L. Buxbaum as its next president, the organization announced last week at its annual meeting.
Buxbaum is an internationally recognized scholar in the areas of private international law and international litigation and jurisdiction, and has most recently served as vice president of the ASCL. She is the John E. Schiller Chair in Legal Ethics at the Law School as well as Indiana University’s Vice President for International Affairs
Oliva elected to American Law Institute
Get PDFJenn Oliva, Professor of Law and Val Nolan Faculty Fellow, has been elected to the American Law Institute, the organization announced yesterday (Oct. 4).
She becomes the 18th member of the Indiana University Maurer School of Law faculty to earn the prestigious recognition.
“This is a tremendous honor for Professor Oliva and we are proud to have her on our faculty,” said Indiana Law Dean Christiana Ochoa, who holds an ex officio role with the ALI. “Since Jenn joined us in 2023 she’s quickly become an invaluable member of the Maurer community and we’re thrilled to see her recognized.
Misery, Melancholy, and Misfortune: A Migrant Case Study
Get PDFThere is an ongoing crisis of despair involving migrants from abroad who are seeking refuge in one of the world’s longest-standing, post-World War II democracies—India. There are roughly 4.9 million noncitizen migrants in India, with most coming from Bangladesh, Myanmar, Nepal, Pakistan, and Sri Lanka. Because these migrants often live in the shadows, they are frequently deprived of fundamental human rights.
On the one hand, it may seem surprising that this population remains so vulnerable. After all, India’s Supreme Court has been a leading institutional light in safeguarding the rights of many marginalized groups. Supreme courts in other countries point to judgments from the Indian Supreme Court as a model for how to ensure that communities on the periphery are treated with dignity and due process. Furthermore, the Indian judiciary has been assisted in its progressive rights jurisprudence by a robust constitution and a vibrant civil society.
Yet when it comes to noncitizen migrants, there has been a dearth of sustained judicial support. Additionally, while there is certain, important, bottom-up activism on behalf of these noncitizens, it has frankly not been enough to meet the cascade of needs that exist.
This project focuses on how institutional inadequacies, at both the governmental and societal levels, have left noncitizen migrants among some of the most isolated individuals within India. Namely, the absence of specialized and independent immigration courts, an outdated immigration statute, a lack of a strong immigration legal profession, insufficient legal education on immigration law, and little research on immigration doctrine are key reasons why migrants face such dire circumstances today. Otherwise put, India’s weak immigration infrastructure has sadly contributed to the difficulties noncitizen migrants face in accessing lawyers, the legal process, and, ultimately, justice within Indian society
Indiana Trial Evidence Manual, 2024 Edition
No full textIndiana Trial Evidence Manual is an easy-to-use manual that assists you at any stage of civil or criminal trial research. It fully covers the Indiana Evidence Rules, as well as the latest cases and statutes. It has sample forms to aid the user to phrase objections properly, and support objections with easily-accessible case law and rules of evidence. This single volume contains everything that one might need at trial but is small enough to fit in a briefcase and concise enough that a trial lawyer can find relevant sections quickly.https://www.repository.law.indiana.edu/facbooks/1342/thumbnail.jp
Cutting the Gordian Knot: Legislative Courts and Due Process
Get PDFLegislative courts doctrine has become terribly tangled. When an area of law is summarized as one in which the “precedents are horribly murky, doctrinal confusion abounds, and the constitutional text is by no means clear,” that area of law has become a Gordian Knot. Attempts to untangle it will prove futile. For over a century and a half, the Supreme Court has repeatedly tried to make sense of legislative courts, but to no avail. These attempts, ranging from pure formalism to functional balancing tests, have proven detrimental to individual litigants.
That is where due process comes in. Despite the fundamental constitutional principle of due process and its promise of a neutral adjudicator, the Supreme Court has failed to consider the legislative courts doctrine from this perspective. The Supreme Court has provided a robust body of jurisprudence under the Due Process Clause about unacceptable pressures and influences on adjudicators. But no one has thought to introduce the two. So rather than continue to try to untangle legislative courts doctrine, we need to use the sword of due process to cut the knot. This piece aims to begin that conversation