1,720,960 research outputs found
Jarkesy’s Stakes for the SEC
No full textThis Article examines the implications of the Supreme Court’s decision in SEC v. Jarkesy for the Securities and Exchange Commission (“SEC” or “Commission”). In Jarkesy, the Court held that Congress cannot assign the adjudication of securities antifraud violations seeking civil penalties to an administrative agency without a jury trial, for such punitive actions involve “private rights.” Although this ruling might suggest a reduction in SEC enforcement actions due to the higher costs of federal jury trials, the SEC had already adjusted its practices following Lucia v. SEC in 2018. The Commission shifted away from using administrative law judges for civil penalties, focusing instead on cases less susceptible to constitutional challenges. Jarkesy presents both immediate and long-term challenges for the SEC. Its direct impact is limited because it affects a type of case the SEC has nearly abandoned. However, it poses significant long-term risks because litigants may attempt to extend its applicability to other enforcement actions, increasing litigation and uncertainty in administrative law. The decision also affects the SEC’s enforcement and settlement practices, potentially hindering its ability to address violations efficiently and serve the public interest. Using a novel dataset, this Article explores these institutional dynamics, analyzing the SEC’s adjudication program and assessing the broader implications of Jarkesy for administrative enforcement
Contract Design in the Shadow of Regulation
Full text linkDoes the threat of legal reform encourage companies to adopt high-quality contract terms that consumers ignore so that companies can use them in lobbying efforts to avoid reform? That may be an overlooked answer to a puzzle about consumer contracts. Consumers ignore most contract terms at the time of acceptance, so scholars usually expect companies to pick ignored terms of the lowest possible quality that courts will let them get away with. But some companies pick terms that are surprisingly high-quality. Courts do not require these terms that consumers ignore, so firms that pick them incur costs for seemingly little gain.
This Article identifies a novel function of these terms: their audience is not courts or consumers but policymakers deciding whether to reform status quo legal rules from which companies profit. Drawing on behavioral law and economics, and illustrating with a case study of lobbying surrounding the Consumer Financial Protection Bureau’s bank account overdraft rule, this Article shows how companies use the high-quality terms they adopt in anticipation of regulation to “frame” the status quo rule. High-quality terms help show how the status quo rule might benefit consumers, letting companies appeal to policymakers’ cognitive biases so they are more likely to support the status quo rule. This Article addresses several practical and theoretical implications of anticipatory self-regulation to frame reform. On one hand, even the threat of legal reform might influence the kinds of contract terms businesses adopt. On the other, a small minority of contract terms can take on outsized role in policy debates about legal reform, potentially distorting policymaking. As a theoretical matter, moreover, the Article complements information revelation models of sequential policymaking by showing how actors at one stage can frame information so policymakers at a later stage resort to decision-simplifying heuristics that favor the status quo.
I. Introduction
II. Unexpectedly High-Quality Nonsalient Terms ... A. The Expected Race to the Bottom ... B. Puzzling Examples of High-Quality Nonsalient Terms ... 1. Overdraft Protection ... 2. Website Privacy Policies ... 3. Pro-Consumer Clauses in Relational Contracts of Adhesion ... 4. Do We See Anticipatory Self-Regulation Elsewhere?
III. Anticipatory Self-Regulation and Framing Effects ... A. Framing the Status Quo in Policy Discourse with Contract Terms ... 1. Framing Effects ... 2. Contract Terms’ Salience to Policymakers ... B. Case Study: Using Anticipatory Self-Regulation to Frame Policy Choice ... 1. Status Quo Bias ... 2. Loss Aversion ... 3. Availability ... C. A General Account of Anticipatory Self-Regulation to Frame Policy ... D. Objections and Alternative Explanations ... 1. Assessing Objections … 2. Alternative Explanations to Anticipatory Self-Regulation
IV. Implications ... A. Theoretical, Empirical, and Normative Implications ... B. Practical Implications for Policymakers and Reformers
V. Conclusio
Overseeing Private Rulemaking: Evidence from SEC Review of SRO Rules
No full textSecurities markets rely heavily on private rulemaking by self-regulatory organizations (SROs) such as FINRA and the stock exchanges, supervised by the Securities and Exchange Commission. The SRO-centric model is marred by problems with democratic accountability and inherent conflicts of interest, where insiders might prioritize private benefits over public needs. For these and related reasons, the SRO model is in a moment of transition— with increasing judicial scrutiny of SROs’ roles and powers within separation-of-powers and administrative-law frameworks. Scholars, meanwhile, know little about how the SROs and SEC jointly produce rules for capital markets. Previous securities regulation scholarship has focused on specific aspects of SRO rulemaking, such as the stock exchanges’ corporate governance rules, largely without addressing systemic issues in the production and SEC oversight of SRO rules. Yet SRO rulemaking practices have important consequences for the regulation of securities markets, including the role of procedural reform on regulatory effectiveness and public participation.
This article’s approach uses a comprehensive new dataset drawn from every issue of the Federal Register from 2000 to 2023, providing a unique macro perspective that reveals significant inefficiencies and oversight challenges in the current system. By employing a political economy lens, this study focuses on procedural inadequacies while aligning them with policy concerns about accountability, oversight, and democratic control over regulation. This article argues that the SRO rulemaking system is not functioning well, producing a firehose of securities law that is at once a massive drain on agency resources, as well as an impediment to robust public participation in the rules governing capital markets. After the Dodd-Frank Act, most rule change proposals go effective immediately upon filing unless the SEC takes action to halt effectiveness and need not require preapproval. The dominance of this mode of SRO rulemaking, I suggest, alters both the incentives as well as opportunities the SEC has to engage in robust oversight. I also find evidence that the SEC’s oversight responds to a judicial-review shock. I assess the Dodd-Frank reforms under a framework that recognizes the tradeoff between the costs of deciding and the costs of making wrong decisions, and connect this tradeoff to deeper debates about the role of SROs in our constitutional structure. This project contributes to our understanding of the political economy of capital markets regulation, as well as our understanding of federal oversight of SRO rulemaking
Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Variations on the Author
Full text link“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
Appropriate Similarity Measures for Author Cocitation Analysis
Full text linkWe provide a number of new insights into the methodological discussion about author cocitation analysis. We first argue that the use of the Pearson correlation for measuring the similarity between authors’ cocitation profiles is not very satisfactory. We then discuss what kind of similarity measures may be used as an alternative to the Pearson correlation. We consider three similarity measures in particular. One is the well-known cosine. The other two similarity measures have not been used before in the bibliometric literature. Finally, we show by means of an example that our findings have a high practical relevance.information science;Pearson correlation;cosine;similarity measure;author cocitation analysis
Dispelling the Myths Behind First-author Citation Counts
Full text linkWe conducted a full-scale evaluative citation analysis study of scholars in the XML research field to explore just how different from each other author rankings resulting from different citation counting methods actually are, and to demonstrate the capability of emerging data and tools on the Web in supporting more realistic citation counting methods. Our results contest some common arguments for the continued
use of first-author citation counts in the evaluation of scholars, such as high correlations between author rankings by first-author citation counts and other citation
counting methods, and high costs of using more realistic citation counting methods that are not well-supported by the ISI databases. It is argued that increasingly available digital full text research papers make it possible for citation analysis studies to go beyond what the ISI databases have directly supported and to employ more
sophisticated methods
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