Securities Regulation and Administrative Law in the Roberts Court

Abstract

This Essay compares a judicial revolution that is happening to one that is not. Both the change and the status quo are being managed by the current Supreme Court. That Court has, when it comes to administrative law, shown a capacity to revisit everything. But when it comes to securities regulation, it has resisted change. The distinction it has drawn is a surprising one - securities regulation is a variant of administrative law, and corporate American has complained about the burdens of both. 

But while the Roberts Court has innovated when it comes to the major questions doctrine, administrative reliance, the availability of administrative proceedings, and judicial review of agency action, among other doctrines, it has declined invitations to raise the standards for certifying securities fraud class actions, simplify and narrow the scope of insider trading law, and raise the materiality threshold for securities fraud.

Some scholars have argued that the Supreme Court is simply uninterested in securities regulation, but the Court now hears proportionately more securities cases than it once did. And, of course, the Roberts Court could change its approach to securities regulation in time. But I think the divergence suggests that the Court wants to carefully police public rights and rights against the state, but is less interested in reformulating the standards for private disputes, such as disputes between shareholders and managers.

Keywords: administrative law, securities regulation, supreme court