Nonenforcement and the Dangers of Leveraging

Loyola University Chicago, Journal of Regulatory Compliance, Issue 3, pp. 19-29 (2018)

BYU Law Research Paper No. 18-04

11 Pages Posted: 19 Mar 2018 Last revised: 10 Feb 2021

See all articles by Aaron L. Nielson

Aaron L. Nielson

Brigham Young University - J. Reuben Clark Law School

Date Written: March 13, 2018

Abstract

Nonenforcement discretion is often beneficial. Not only do agencies have limited resources, general prohibitions can be poor fits for specific situations. Hence, agency discretion to not to enforce the law often makes a great deal of sense. Unfortunately, such discretion can also be abused. This short symposium essay addresses one type of potential abuse: leveraging. An agency may forego enforcement in order to obtain ends that are beyond the mission Congress set for it and, in so doing, may pursue technical violations that would not otherwise be a priority in order to obtain greater leverage over a particular party. This essay first addresses leveraging as a concept, including when quid pro quo trades between regulators and regulated parties are appropriate. And second, it begins to sketch options to minimize the danger of leveraging. Although there is no easy fix, it may be possible to reduce the risk.

Keywords: nonenforcement, leveraging, administrative law, what's new in administrative law

JEL Classification: K23

Suggested Citation

Nielson, Aaron, Nonenforcement and the Dangers of Leveraging (March 13, 2018). Loyola University Chicago, Journal of Regulatory Compliance, Issue 3, pp. 19-29 (2018), BYU Law Research Paper No. 18-04, Available at SSRN: https://ssrn.com/abstract=3139995 or http://dx.doi.org/10.2139/ssrn.3139995

Aaron Nielson (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
133
Abstract Views
898
Rank
320,922
PlumX Metrics