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Securities Laws and the Administrative State

Billing and PCAOB reflect efforts by the Roberts Court to limit the effect of prior precedents that it considers misguided. Billing cabins the confused Silver decision, which conflates antitrust and due process. PCAOB limits Humphrey’s Executor’s attempt to insulate expert agencies from political interference. Both lines of precedent have implications that go well beyond the administration of the securities laws. The opinions in Billing and PCAOB are directed at those debates, paying scant attention to the substance of the securities laws.

The Class-Action Menace?

The Roberts Court decided substantive issues in eight securities class actions during the chief justice’s first seven years. Who’s winning? The scorecard suggests a tie: plaintiffs four, defendants four.[1] Plaintiffs have been rebuffed when they attempted to expand the boundaries of private litigation, but the Roberts

Court has also overturned lower court decisions that would have curtailed the existing availability of securities class actions.

  • [1] Informed observers would put the tally closer to five to three; Tellabs is a nominal defendantwin, but it adopts a plaintiff-friendly standard. If one were to include Dabit (defendant win), Merck(plaintiff win), and Simmonds (defendant win) in this tally, the numbers would change to six to five,but still in favor of plaintiffs.
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