There is a pervasive assumption that the Supreme Court’s ruling in NLRB v. Noel Canning has rendered void the decisions of the Board during the period when it lacked a quorum because a majority of its members held their posts through unconstitutional recess appointments. The assumption is unfounded. The question of remedy for the wrong identified in Noel Canning should not be decided in the air; it should be decided contextually, as one involving whether and how to provide relief to parties affected by a wholly concluded constitutional violation, in a manner that is akin to harmless- and plain-error review.
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Consciously Decoupling: A Response to Professors Barry, Hatfield, and Kominers
On Derivatives Markets and Social Welfare: A Theory of Empty Voting and Hidden Ownership represents a compelling addition to the still burgeoning discussion of the bifurcation of voting rights and ownership interests. The practice of decoupling the long-fused voting rights of shareholders from their underlying economic interests has become all too common with the explosive growth of financial derivatives. Decoupling challenges assumptions embedded in our capital markets, tests our system of corporate governance, and strains a regulatory regime based on disclosure.
This short Response attempts to persuade the reader that decoupling is, by its very nature, more upsetting to the natural order than the authors concede. And, its persistence threatens the predictability and stability of the overall market. Regardless of whether a “core outcome model” suggested by the authors becomes generally accepted, any desirable regulatory framework must begin with an ironclad mandate for full and fair disclosure not easily side-stepped by derivatives. In addition, focus on a desirable explanatory model should not siphon attention from efforts underway to improve the quality and depth of the information available to market participants.
Saving the IRS
The current controversy involving the IRS’s administration of the exempt organization (EO) tax laws is simply the latest in a long succession of similar questions spanning at least five decades. This essay proposes addressing the problem through increased transparency of the IRS’s administrative actions involving EOs. Opening up more decision-making to public scrutiny would tend to deter IRS misbehavior, reduce suspicions of such misconduct, and promote fuller communication both to establish impropriety and avert false charges against the agency.