Management’s Duty to Restore The Rule of Law

J. Kennerly Davis

June 6, 2018

Springtime is the season when most American corporations hold their annual meeting of shareholders.  In the course of a typical meeting, board directors will be elected and independent auditors will be appointed.  Management will report on operating results and earnings for the fiscal year recently ended, and will outline their strategic business plans for the future.  In their presentations, management will make the case that they are fulfilling the fundamental fiduciary duty they have to promote the best interests of the corporation and maximize shareholder value.

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Why is EPA’s Transparency Proposal Controversial?

Eileen J. O'Connor

May 24, 2018

The proposed rule was welcomed by those who believe it will improve rulemaking and public understanding of it.

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Affirmative Discrimination Against Asian American Applicants in College Admissions

Althea Nagai

May 22, 2018

The Asian American population and the number of Asian Americans going to elite colleges in the United States have exploded in the past few decades. However, since the 1990s, some admissions officers seem to regard being Asian American as a “minus” factor in an application even as they see being black or Hispanic as a “plus.” It’s not as if a college explicitly states that it needs to cap the number of Asian Americans admitted so that more applicants who are not of Asian lineage can get in.  Instead, commitments to “holistic admissions” and racial and ethnic “diversity” do the job.

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The Ongoing Battle Over the CFPB’s Constitutionality

Julius Loeser

May 18, 2018

Under former CFPB Director Cordray, the CFPB defended its constitutionality, but, now, under Acting Director Mulvaney, the CFPB is arguing that the issue is now moot because Acting Director Mulvaney has ratified the enforcement actions against All American and the President has the right to remove the Acting Director at will.

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Trends in Government Priorities, 1960 – 2019

Eileen J. O'Connor

May 15, 2018

A new report – by Susan Dudley of the George Washington University Regulatory Studies Center and Melinda Warren of the Weidenbaum Center on the Economy, Government, and Public Policy at Washington University in St. Louis – shows that President Trump plans to increase regulatory activity for border security and immigration in 2019, and to dramatically reduce the budgets of agencies involved in environmental regulation.

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Celebrating Law Day

J. Kennerly Davis, Jr.

May 1, 2018

Today marks the 60th anniversary of President Eisenhower’s proclamation establishing Law Day. Eisenhower dedicated the day to “distinguish our governmental system from the type of government that rules by might alone.”

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Will OIRA Extend its Review to Independent Agencies?

Susan Dudley and Eileen J. O'Connor

April 26, 2018

At the Federalist Society’s Sixth Annual Executive Branch Review Conference, Office of information and Regulatory Affairs (“OIRA”) Administrator Neomi Rao spoke about the new agreement she had hammered out with the Treasury Department to bring OIRA’s review of IRS regulations more in line with its review of other agencies’ regulations. She also strongly hinted that independent regulatory agencies may be next, observing that “OIRA review can promote a more constitutional and coherent regulatory policy,” and that the “good regulatory practices promoted by OIRA can apply to all agencies that regulate the public.” In her latest Forbes column, Susan Dudley agrees.  She argues that OIRA review encourages greater transparency, analytical rigor, and accountability in regulations, and urges the Administration to extend long-standing executive orders requiring OIRA review to all agencies that issue regulations binding on the public.

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Public Lands: Pride, Place, Proximity & Power

Donald Kochan

April 9, 2018

Professor Donald Kochan has a new article on public lands and federalism just published in Volume 25, Issue 1, Page 1, by the Virginia Journal of Social Policy & the Law. The full article, Public Lands: Pride, Place, Proximity & Power, can be downloaded here. Here is the abstract.

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The Consumer Bureau Asks Congress to Fix It

Wayne A. Abernathy

April 4, 2018

Mulvaney’s basic argument is cogent and refreshing.  In short, he says “the Bureau is far too powerful, and with precious little oversight of its activities.”

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Public Participation and the Power of Persuasion

Brian F. Mannix

March 20, 2018

I care about regulatory policy, and over the years have filed comments on the record in dozens of agency rulemakings. Most of these comments have been ignored, but many have been influential – a few spectacularly so. I cannot say the same about the votes I have cast in federal elections.

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