Outside Publication

An Important Question For SEC Nominees, Law360

May 18, 2016

As the U.S. Senate continues its vetting of the two presidential nominees for the vacant positions of U.S. Securities and Exchange Commission commissioners, the nominees should be asked to discuss their views regarding a practice commonly known as “rulemaking by enforcement.”

This practice involves a government agency, such as the SEC, using an enforcement action (often in the form of a settled case) to establish a new standard of disclosure or conduct that arguably should be established through rulemaking, accompanied by due process and deliberations required by law.

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