The prestigious Harvard Law School Forum on Corporate Governance and Financial Regulation includes a post from partner Bruce Kraus, in which he discusses his forthcoming Yale J. Reg. paper, “Rational Boundaries for Cost-Benefit Analysis in SEC Rulemaking”. Bruce and co-author Connor Raso show how the jurisprudence resulting from the interplay between Congressional legislation, the SEC and D.C. Circuit decisions, culminating in last year’s Business Roundtable opinion, have proven increasingly unworkable in practice, casting doubt on the ability of federal regulatory agencies to implement the Dodd-Frank Act. The posting is particularly timely given the success last week in district court of a challenge to the CFTC’s position limits rule, and yesterday’s Complaint filed in the Court of Appeals against the SEC’s extractive industries rule. The more recent cases squarely present the question of whether private litigants can use general statutes enacted in the 1990s calling for agency consideration of economic factors to overturn rules specifically mandated by more recent legislation. Coverage of Bruce’s article in The New York Times provoked a response in The Wall Street Journal from Eugene Scalia, counsel for the affected industries in all these cases, which Bruce responds to in this post.
To read the full blog post in the Harvard Law School Forum on Corporate Governance and Financial Regulations, click here.