Abstract
“Restoring American Financial Stability Act” of 2010 (RAFSA or the Dodd-Frank Act) was the first set of statutes in any country that attempted to simultaneously address the Global Financial Crisis, financial stability, systemic risk, consumer protection, sustainable growth, the national securities law framework, the structure of the executive branch of the federal government and delegation of powers to federal government agencies (to the detriment of state governments). However, RAFSA and similar statutes in many countries/jurisdictions are inefficient, and have failed to address the fundamental problems in financial systems; and parts of RAFSA are unconstitutional. In July 2010, the US Congress enacted the Restoring American Financial Stability Act of 2010 (RAFSA or the Dodd-Frank Act), which consists of several individual distinct statutes and substantially changes the nature and effects of federalism and pre-emption in the United States—RAFSA grants more powers to the US federal government to regulate more financial services, but because the statute leaves critical details up to the US SEC and the US Federal Reserve System, sections of RAFSA may be challenged in court on constitutional grounds as void for vagueness.
This chapter contains excerpts from the author Michael C. Nwogugu’s articles that are cited as:
1. Nwogugu, M. (2015b). Un-Constitutionality of the Dodd-Frank Act. European Journal of Law Reform, 17, 185–190.
2. Nwogugu, M. (2015a). Failure of the Dodd-Frank Act. Journal of Financial Crime, 22(4), 520–572.
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Notes
- 1.
See: Summary of Financial Stability Act of 2010. Available at: http://banking.senate.gov/public/_files/FinancialReformSummaryAsFiled.pdf.
See: Davis Polk (2010). Summary of the Restoring American Financial Stability Act, Passed by the Senate on 20 May 2010. www.davispolk.com/sites/default/files/files/Publication/fc30f0b3-3db4-4181-a44e-3b3e54853b6f/Preview/PublicationAttachment/19c8367f-0467-4f3d-8492-010c9692578c/052210_Davis_Polk_Senate_Bill_as_Passed_Summary.pdf.
See: s.3217, ‘Restoring American Financial Stability Act of 2010’. Available at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s3217as.txt.pdf.
See: http://dpc.senate.gov/docs/lb-111-2-64.html.
See: Administration’s Financial Regulatory Reform Bill, 2009 and 2010. Available at: www.llsdc.org/Admin-Bill/.
See: ‘Financial Overhaul Bill Has Many Rules’. Available at: www.lvrj.com/business/bill-has-many-rules%2D%2Dcritics-97836159.html.
See: Jones, G., Klutsey, B. & Christ, K. (January, 2010). Speed Bankruptcy: A Firewall to Future Crises. Working Paper #10-02, Mercatus Center at George Mason University, USA.
See: Congressional Research Service (USA) (April 1, 2010). Summary of ‘Restoring American Financial Stability Act of 2010’. Financial Stability Act of 2010 (introduced on 15 April 2010).
- 2.
See: Shearman & Sterling, Dodd-Frank, UK, EU & Other Regulatory Reforms (2013) at http://www.shearman.com/dodd-frank/.
- 3.
See: Regulation 648/2012 on OTC derivatives, central counterparties and trade repositories [2012] OJ L201/1.
- 4.
See: FSA (UK) (2012), Review of The Markets in Financial Instruments Directive II. Available at: http://www.fsa.gov.uk/about/what/international/mifid.
See: DIRECTIVE 2008/10/EC of The European Parliament And of The Council of 11 March 2008. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:076:0033:0036:EN:PDF.
- 5.
Directive 2006/48 relating to the taking up and pursuit of the business of credit institutions [2006] OJ L177/1.
- 6.
See: Davis Polk (July 2013). Dodd Frank Progress Report, July 2013. Available at: www.davispolk.com/Dodd-Frank-Rulemaking-Progress-Report/.
- 7.
See: Fisher, R. (June 2013). Correcting ‘Dodd-Frank’ To Actually End ‘Too Big to Fail’. Statement before the Committee on Financial Services, U.S. House of Representatives Hearing on “Examining How the Dodd-Frank Act Could Result in More Taxpayer-Funded Bailouts”, Washington, D.C., June 26, 2013. Available at: www.dallasfed.org/news/speeches/fisher/2013/fs130626.cfm.
- 8.
See: Natter, R. (July 2011). Does Dodd-Frank End Too Big to Fail? (RAFSA did not end the too-big-to-fail phenomenon). Available at: www.bsnlawfirm.com/newsletter/OP0711_3.pdf.
- 9.
See: Peirce, H. & Broughel, J., (Eds.) (2012). Dodd-Frank: What It Does and Why It’s Flawed. Mercatus Center, George Mason University, USA. Available at: http://mercatus.org/sites/default/files/publication/dodd-frank-FINAL.pdf. This document states that:
-
1.
The US FSOC has not played an effective coordinating role in the crucial initial years of regulatory implementation of Dodd-Frank;
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2.
Designating specific firms as systemically important creates a market expectation that designated firms are too big to fail and thus dulls market discipline;
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3.
The US Federal Reserve’s bank-centric regulatory model will not work for non-banks;
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4.
The structure of the OFR enables it to operate without the accountability expected to apply to government agencies and without adequate safeguards on data;
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5.
Once a company is in resolution, the FDIC has broad discretion, without effective checks, to determine how creditors’ claims are handled;
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6.
Expansion of deposit insurance decreases effective market restraint of bank risk taking and may yield greater systemic instability;
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7.
Title III adds a new layer of bureaucracy at each financial regulator;
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8.
SEC resources will be diverted from monitoring advisers who manage the assets of average retail investors to monitoring the assets of wealthy investors who invest in private funds;
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9.
Regulators have devised an unnecessarily costly compliance regime for private funds, the costs of which will be passed on to investors;
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10.
Designating insurance companies as systemic aggravates the too-big-to-fail problem and introduces an inexperienced regulator in the insurance space without solving the insurance regulatory failures in evidence at entities like AIG;
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11.
Title VI consolidates an inordinate amount of regulatory power in the Fed, despite the Fed’s past regulatory failures;
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12.
Title IV increases the likelihood that the US Federal Reserve and other regulators will prop up failing financial firms in the future;
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13.
Because the statutory language is ambiguous and the proposed rules are even more so, the Volcker Rule could make it difficult for banks to engage in legitimate hedging and market-making activities. Market liquidity could suffer;
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14.
Title VII fragments regulation of OTC derivatives markets by assigning responsibility to two regulatory agencies; and it imposes a regulatory scheme that better suits a highly liquid retail market;
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15.
Regulators’ overly aggressive, uncoordinated, and inadequately analyzed approach to implementation of Title VII increases the likelihood that new rules will have harmful unintended effects).
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1.
- 10.
See: Accenture (2010). “US Financial Regulatory Reform: Cost or Opportunity?’, Impact of The Dodd-Frank Wall Street Reform Act” (predicting that it will cost the US financial services industry $3–$5 Billion between 2010 and 2013 to implement RAFSA; and that the annual operating profits of the hardest hit firms could fall by 20%–30%; and that RAFSA will produce new operational challenges and pose significant strategic questions about how firms will prop up their return on equity while absorbing the cost of more reporting to regulators, a more expensive cost of capital and the loss of some of their most profitable businesses; and Accenture’s June 2010 poll of 101 financial industry executives found that nearly half (49%) thought their profits would decrease as a result of RAFSA). Available at: www.accenture.com/SiteCollectionDocuments/PDF/Accenture_US_Financial_Regulatory_Reform.pdf.
See: Wallison, P. (July 20, 2014). ‘Four Years of Dodd-Frank Damage’. Wall Street Journal, 20 July 2014. Available at: www.wsj.com/articles/peter-wallison-four-years-of-dodd-frank-damage-1405893333.
See: The Economist (2012) (supra).
See: Switzer, L. & Sheahan-Lee, E. (May 2013). ‘The Impact of Dodd-Frank Regulation of OTC Derivative Markets and the Volcker Rule on International Versus US Banks: New Evidence’ (RAFSA imposes costs on US banks while foreign international banks avoid such costs).
- 11.
See: Schnidman (2011) (noting that the post-crisis financial system structure fails to look dramatically different than before; and the major change in the post-crisis financial regulatory system is a US Federal Reserve that has excessive powers; and that there is a weaker Consumer Financial Protection Bureau that is housed in the US Federal Reserve rather than as a stand-alone agency). Available at: www.hblr.org/2011/06/why-the-federal-reserve-is-dodd-franks-big-winner/; or www.hblr.org/?p=1203.
- 12.
See: Top Securities Lawyers Call for Self-Funded S.E.C. Available at: http://dealbook.nytimes.com/2010/06/11/top-securities-lawyers-call-for-self-funded-s-e-c (noting that RAFSA failed to make the US SEC a self-funded agency, and the omission severely limits the SEC’s scope and power).
- 13.
See: Carton, B. (2011). How Can Congress Kill Dodd-Frank? By Underfunding It. www.securitiesdocket.com/2011/01/20/how-can-congress-kill-dodd-frank-by-underfunding-it.
- 14.
See: “Small Biz Has Big Stake in Dodd-Frank Changes”. Available at: www.hartfordbusiness.com/article/20130617/PRINTEDITION/306139922/small-biz-has-big-stake-in-dodd-frank-changes. The article states in part “The Small Business Capital Access and Job Preservation Act (H.R. 1105) seeks to modify certain aspects of the Dodd-Frank Wall Street Reform and Consumer Protection Act that are inappropriate for private equity firms, particularly middle market private equity firms. H.R. 1105 will address the many unintended consequences of Dodd-Frank that impede the flow of capital to small businesses and do not provide any protection to investors or the financial system as a whole”.
- 15.
- 16.
See: American Action Forum (April 2010). The Senate Financial Regulatory Reform Bill. Available at: http://americanactionforum.org/files/FinRegBill1_0.pdf.
See: Elliot, D. (March 15, 2010). Evaluating Key Aspects of Senator Dodd’s Revised Financial Reform Bill. The Brookings Institution.
- 17.
See: The Economist (2012) (supra).
- 18.
See: Morrison & Foerster (2012). ‘The Dodd-Frank Act: A Cheat Sheet’. Available at: www.mofo.com/files/Uploads/Images/SummaryDoddFrankAct.pdf.
- 19.
See: Hall, C. & Kazman, S. (February 13, 2013). ‘Eight More States Join Constitutional Challenge to Dodd-Frank Act: Eleven States Now Challenge Dodd-Frank’s Orderly Liquidation Authority, Which Exacerbates “Too Big To Fail” and Puts State Pensions and Other Funds at Risk’. Available at: https://cei.org/news-releases/eight-more-states-join-constitutional-challenge-dodd-frank-act.
See: Gray, C. & Purcell, J. (June 21, 2012). ‘Why Dodd-Frank Is Unconstitutional: The Financial Regulations Signed into Law in 2010 Do Not Honor Checks and Balances. They Eliminate Them’. Wall Street Journal, 21 June 2012. Available at: www.wsj.com/articles/SB10001424052702304765304577480451892603234.
See: McTaggart, T. & Silver, M. (2011). Constitutionality Analysis of Certain of the Dodd-Frank Wall Street Reform and Consumer Protection Act’s Most Significant Grants of Regulatory Power. Available at: www.pepperlaw.com/pdfs/McTaggart_CatoInstitutePresentation_021511.pdf.
See: US House Hearing, 113 Congress (July 9, 2013). Examining Constitutional Deficiencies and Legal Uncertainties in The Dodd Frank Act, Hearing before the Subcommittee on Oversight and Investigations of the Committee on Financial Services. US House of Representatives, One Hundred Thirteenth Congress, First Session, 9 July 2013. Available at: www.gpo.gov/fdsys/pkg/CHRG-113hhrg82859/html/CHRG-113hhrg82859.htm.
See: Addington, D. (2011). Congress Should Promptly Repeal or Fix Unwarranted Provisions of the Dodd-Frank Act. www.heritage.org/research/reports/2011/10/congress-should-promptly-repeal-or-fix-unwarranted-provisions-of-the-dodd-frank-act.
- 20.
See: Rabinovitch (2013) (discussing the violation of the Takings Clause that is inherent in the Durbin Amendment).
See: Federal Republic of Germany et al. vs. Philipp et al. (No. 19–351; February 3, 2021; US Supreme Court). https://www.supremecourt.gov/opinions/20pdf/19-351_o7jp.pdf.
See: Bolivarian Republic of Venezuela vs. Helmerich & Payne Int’l Drilling Co., 581 U.S. _____ (2017, US Supreme Court).
See: Cedar Point Nursery vs. Hassid, ____ US ____ (US Supreme Court; pending as of 2021).
See: Cedar Point Nursery vs. Sheroma, ____ F.3d. ____ (US Ninth Circuit Court of Appeals).
See: PennEast Pipeline Co. vs. New Jersey, ___ US ____ (US Supreme Court; pending as of 2021).
See: Murr vs. Wisconsin, 137 S.Ct. 1933 (US Supreme Court; 2017).
See: California Bldg. Industry Ass’n vs. City of San Jose, Calif., 136 S.Ct. 928 (US Supreme Court; 2016).
See: Koontz vs. St. Johns River Water Management District, 570 U.S. 2588 (US Supreme Court; 2013).
See: Lucas vs. South Carolina Coastal Council, 505 U.S. 1003 (US Supreme Court; 1992).
- 21.
See: Van Oppen and Van Wert (2014, October 28) (questioning the constitutionality of the US SEC’s adjudicatory powers and in-house courts).
- 22.
See: Nwogugu (2012a: 264–265) (noting that the US SEC’s and the US IRS’s rule-making and adjudicatory powers constitute violations of the Separation of Powers Doctrine).
See: Collins vs. Yellen, ___ US ___ (No. 19-422; US Supreme Court; pending as of 2021).
See: Collins vs. Mnuchin, ____ US _____ (Docket No. 19-422; US Supreme Court; pending as of 2021).
See: Seila Law LLC vs. Consumer Financial Protection Bureau, ____ US ____ (Case#: No. 19-7; US Supreme Court; 2020) (the Consumer Financial Protection Bureau’s single-Director structure violates the Separation of Powers Doctrine, and the proper remedy is to sever the Director’s statutory for-cause removal restriction).
See: Humphrey’s Executor vs. United States, 295 U.S. 602 (US Supreme Court; 1935).
See: PHH Corp. vs. CFPB, 839 F.3d 1 (2016) on rehearing enbanc, 881 F.3d 75 (D.C. Cir., 2018) (en banc).
- 23.
See: Rabinovitch 2013 (noting that RAFSA violates the Separation of Powers Doctrine).
- 24.
See: Heritage Foundation and National Association of Criminal Defense Lawyers (“NACDL”) (2010). Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law. Available at: www.nacdl.org/withoutintent.
- 25.
See: National Association of Criminal Defense Lawyers (“NACDL”) (2010a). NACDL on HR 4173–Recommendations (recommendations for reforming Dodd-Frank Conference Report [HR 4173]). Available at: www.nacdl.org/public.nsf/86871e9e0d470e3185257006006e5f55/b5224f126c7e41cb8525773f0074136f/$FILE/NACDL%20on%20HR4173.pdf. Also available at: www.nacdl.org/criminaldefense.aspx?id=9920. NACDL (2010a) criticized specific sections of RAFSA as follows:
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1.
Section 202(a)(1)(C)—is over-criminalized and has inadequate Mens Rea requirement and should be deleted.
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2.
Section 741—covers material that is already covered in the federal mail fraud and wire fraud codes; and weakens the Mens Rea requirements; and should be deleted.
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3.
Section 747(B)(5)—does not provide adequate notice; is somewhat vague; and has inadequate Mens Rea requirement and should be deleted.
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4.
Section 747 (amends 7 USC 6c(a) by adding “(7) use of swaps to Defraud”)—this statute duplicates existing federal aiding-and-abetting and conspiracy statutes; weakens the men area requirement and should be deleted.
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5.
Section 1036(3)—this statute duplicates existing federal aiding-and-abetting and conspiracy statutes; does not have adequate men area requirement and should be deleted.
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6.
The following statutes lack adequate Mens Rea requirements: Section 723; Section 768(b); Section 724; Section 728; Section 731; Section 733; Section 975(a)(1); Section 764; Section 753(b); Section 746; Section 747; Section 724(a); Section 730; Section 929; Section 975(a)(5); and Section 1036(1;2;3).
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7.
The following sections of RAFSA are over-broad or vague: Section 746; Section 975; and Section 934.
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8.
The following sections of RAFSA constitute inappropriate regulatory criminalization: Section 730; Section 929 and Section 1036.
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9.
Sections that require conforming amendments—Sections 763 and 764 at pages 387 and 409 repeat many of the aforementioned offenses, and should be amended to conform to recommended changes.
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1.
- 26.
See: National Association of Criminal Defense Lawyers (‘NACDL’) (2010b). Criminal Provisions in HR 4173 (list of the criminal provisions in Dodd-Frank Conference Report [HR 4173]).
- 27.
See: Joslyn, T. (Dec. 10, 2010). Criminal Provisions in the Dodd-Frank Wall Street Reform & Consumer Protection Act. The Federalist Society. https://fedsoc.org/commentary/publications/criminal-provisions-in-the-dodd-frank-wall-street-reform-consumer-protection-act.
- 28.
See: “Unions, retirees sue to block Chicago pension changes”. By Karen Pierog. December 16, 2014. https://www.reuters.com/article/usa-chicago-pensions-lawsuit/update-2-unions-retirees-sue-to-block-chicago-pension-changes-idUSL1N0U01MO20141216 (states in part: “The lawsuit asks the court to declare the law void and illegal because pensions will be reduced in violation of a constitutional provision prohibiting the diminishment or impairment of public employee retirement benefits. A similar argument by unions and others led to a November 21 Sangamon County Circuit Court ruling that tossed Illinois’ 2013 pension reform law for being unconstitutional. The Illinois Supreme Court will hear arguments in March over the state’s appeal of that ruling. Illinois has the worst-funded state pension fund, while Chicago is struggling with a huge pension funding burden. Moody’s Investors Service has said the city is an “extreme outlier” among U.S. local governments it rates, citing a $32 billion adjusted net pension liability that is equal to eight times operating revenue. A hearing on a temporary restraining order to stop the January 1 implementation of Chicago’s pension law is set for December 29, according to AFSCME spokesman Anders Lindall. He said last month’s ruling on Illinois’ law, along with a state supreme court ruling in July over state retiree health care, have reinforced constitutional protections for retirement benefits”).
- 29.
See: The U.S. Securities and Exchange Commission (2011). Implementation of the Whistleblower Provisions of Section 21F of the Securities Exchange Act of 1934. https://www.sec.gov/rules/final/2011/34-64545.pdf.
See: “New Record for Dodd-Frank Whistleblowers – Employment Law This Week”. By Epstein Becker & Green, P.C. on April 11, 2018. https://www.workforcebulletin.com/2018/04/11/new.-record-for-dodd-frank-whistleblowers-employment-law-this-week/.
See: Malone, A. & Jones, R. (December 6, 2010). “Revealed: Inside the Chinese suicide sweatshop where workers toil in 34-hour shifts to make your iPod”. Daily Mail (London). Available at: http://www.dailymail.co.uk/news/article-1285980/Revealed-Inside-Chinese-suicide-sweatshop-workers-toil-34-hour-shifts-make-iPod.html.
See: “Chinese Factory asks for ‘no suicide’ vow”. MSNBC. May 26, 2010. Available at: http://www.msnbc.msn.com/id/37354853/ns/business-world_business/?ns=business-world_business.
See: Carlson, N. (April 7, 2010). “What It’s Like To Work In China’s Gadget Sweatshops Where Your iPhones And iPads Are Made”. Business Insider. Available at: http://www.businessinsider.com/what-its-like-to-work-if-chinas-gadget-sweatshops-where-your-iphones-and-ipads-are-made-2010-4?utm_source=Daily+Buzz&utm_campaign=81432d578c-nl_emv_db_04082010_a&utm_medium=email.
See: “Apple denies claims it broke Chinese labor laws in iPhone factory”. September 8, 2019. Saheli Roy Choudhury. https://www.cnbc.com/2019/09/09/apple-appl-claims-it-broke-china-labor-laws-at-iphone-factory-mostly-false.html.
See: “Apple’s 2019 supplier report shows progress on labor and health issues”. Jeremy Horwitz. March 6, 2019. https://venturebeat.com/2019/03/06/apples-2019-supplier-report-shows-progress-on-labor-and-health-issues/.
See: “Apple and Foxconn broke Chinese Labour law to build new iPhones – US tech group and manufacturing partner admit using too many temporary workers”. Louise Lucas. September 9, 2019. https://www.ft.com/content/19fefd86-d2c3-11e9-8367-807ebd53ab77.
See: Chen, B. (May 14, 2010), “Workers Plan to Sue iPhone Contractor Over Poisoning”, Wired. https://www.wired.com/gadgetlab/2010/05/wintek-employees-sue/.
See: “Apple under fire again for working conditions at Chinese factories”. The Guardian. December 19, 2014. https://www.theguardian.com/technology/2014/dec/19/apple-under-fire-again-for-working-conditions-at-chinese-factories?CMP=EMCNEWEML6619I2.
See: “Study Casts Doubts on Apple’s Ethical Standards”. China Labor Watch. February 24, 2016. http://www.chinalaborwatch.org/report/113.
See: “Poor Working Conditions Persist at Apple Supplier Pegatron”. China Labor Watch. October 22, 2015. http://www.chinalaborwatch.org/report/109.
See: Perlin, R. (2013). “Chinese Workers Foxconned”. Dissent, 60(2), 46–52.
See: Armitage, J. (July 30, 2013). “‘Even worse than Foxconn’: Apple rocked by child labour claims”. The Independent. London.
See: Mozur, P. (December 19, 2012). “Life Inside Foxconn’s Facility in Shenzhen”. The Wall Street Journal. https://blogs.wsj.com/chinarealtime/2012/12/19/life-inside-foxconns-facility-in-shenzhen/.
See: “Apple suppliers maintain tight security to avoid leaks: Foxconn said to have ‘special status’ in China”. MacNN, February 17, 2010. Available at: http://www.macnn.com/articles/10/02/17/foxconn.said.to.have.special.status.in.china/.
See: Apple’s Recent Strike in Suzhou is Sign of Continued Bad Labor and CSR Practices in China. All Roads Lead to China, January 21, 2010. Available at: http://www.allroadsleadtochina.com/2010/01/21/will-apple-be-the-next-nike-or-will-they-take-labor-compliance-seriously/.
See: “Apple – Supplier Responsibility” (PDF). Apple. Available at: http://images.apple.com/supplierresponsibility/pdf/L418102A_SR_2010Report_FF.pdf.
See: Blodget, H. (April 7, 2010). “Apple-Supplier Factory Worker Tries to Kill Herself – That’s 4 in 4 Weeks”. Business Insider. Available at: http://www.businessinsider.com/henry-blodget-another-apple-supplier-factory-worker-tries-to-kill-herself-thats-4-in-4-weeks-2010-4.
See: Apple Loses Lawsuit Over a Company Policy Tim Cook Didn’t Know About. By Sissi Cao. February 14, 2020. https://observer.com/2020/02/apple-lose-lawsuit-retail-employee-security-check-pay/. (“Apple has a lost a class-action lawsuit brought by its Apple store employees regarding a seemingly miscellaneous company policy at the retail level that CEO Tim Cook wasn’t even aware of. The plaintiffs filed the class-action suit in 2013, revealing that Apple would require its retail employees to go through a security check after they clocked out every day to make sure that no company assets or trade secrets were stolen. The exit check would typically take 10 to 20 minutes and involved searches of employees’ purses, briefcases and personal iPhones”).
See: Apple sued by employees over labor issues. by James O’Toole. July 23, 2014. https://money.cnn.com/2014/07/23/technology/apple-labor/. (“The company is facing a lawsuit certified as a class action this week from employees who say they were denied meal breaks and rest periods in violation of California labor law. Attorneys for the plaintiffs estimate that more than 20,000 current or former Apple employees from the retail to corporate level have been affected by the alleged violations. Among other things, the lawsuit claims Apple employees were forced to work for stretches of five hours or more without meals, and didn’t get breaks on shorter shifts”).
See: “Class complaint for injunctive relief and damages, in the United States District Court for the District of Columbia, 15 December 2019; Major tech companies respond to lawsuit over mining deaths”. ComputerWeekly.com. https://www.business-humanrights.org/en/latest-news/lawsuit-against-apple-google-tesla-and-others-re-child-labour-drc/ (“Snapshot: In 2019, IRAdvocates, a US-based NGO filed a class action lawsuit against Apple, Google, Tesla, Alphabet, Microsoft, and Dell alleging the corporations profited from child labour in their cobalt supply chains in the Democratic Republic of Congo. Plaintiffs are either guardians of children killed in cobalt mining tunnels or children who were maimed while working in the mines”).
See: The Other Side Of Apple II: Pollution Spreads Through Apple’s Supply Chain. Institute of Public and Environmental Affairs, August 31, 2011. http://www.ipe.org.cn/Upload/Report-IT-V-Apple-II.pdf.
See: Barboza, D. (2012). Apple Cited as Adding to Pollution in China. The New York Times, September 1, 2011. Accessed March 26, 2012. https://www.nytimes.com/2011/09/02/technology/apple-suppliers-causing-environmental-problems-chinese-group-says.html?_r=1.
See: Watts, Jonathan, Apple secretive about ‘polluting and poisoning’ supply chain, says report. The Guardian, January 19, 2011. https://www.theguardian.com/environment/2011/jan/20/apple-pollution-supply-chain.
See: Jobs, Steve, A Greener Apple. Apple, Inc. https://www.apple.com/hotnews/agreenerapple/.
See: Greenpeace. “Hazardous Materials Found in Apple’s iPhone: Chemicals Include those Banned in Children’s Toys in EU”. Greenpeace International. Greenpeace. http://www.greenpeace.org/usa/en/media-center/news-releases/hazardous-materials-found-in-a/.
- 30.
See: “Dodd-Frank Wall Street Reform Act Requires Federal Financial Agencies to Address Diversity and Fair Inclusion of Minorities and Women”. By Stephanie Wilson. October 20, 2010. https://www.employmentlawwatch.com/category/employment-us/workplace-laws-and-regulations/.
- 31.
See: Financial Regulators Set Out to Get Their Man: Federally Mandated Bounties and Anti-Retaliation Provisions Designed to Regulate the Financial Services Industry. By David Krulewicz and Stephanie Wilson. October 26, 2010. https://www.employmentlawwatch.com/category/employment-us/.
- 32.
See: “The International State of Corruption: Why the Foreign Corrupt Practices Act Continues to be the Most Successful Mechanism Available to Fight Corruption”. Tuesday, October 27, 2020. https://www.natlawreview.com/article/international-state-corruption-why-foreign-corrupt-practices-act-continues-to-be.
- 33.
States in part: “Today, labor rights stand at a crossroads. The traditional stance where labor law and regulation rested in the state as the lawmaker, enforcer and implementer, with international labor standards as the minimum standards has, with time, been hampered by the activities of other actors, such as multinational corporations, international non-governmental organizations, paramilitary groups, international financial institutions (IFIs) and international organizations, that have inadvertently had an impact on labor standards and their governance. Here, the boundaries between domestic and international are increasingly blurred as issues which were once solely under the purview of domestic law and politics, such as environmental standards and labor regulation, are influenced and affected by such actors”.
- 34.
See: You Still Can’t Sue Your Bank. So What Can You Do? How to make arbitration work in disputes with your financial institution”. By Tobie Stanger. October 25, 2017. https://www.consumerreports.org/contracts-arbitration/you-still-cant-sue-your-bank-arbitration-cfpb/. This article states in part: “The Senate’s recent vote to let forced-arbitration language remain in consumer contracts with banks and other financial institutions means that consumers will continue to have limited legal options when they believe they’ve been harmed by companies like Wells Fargo and Equifax. Now, as before, consumers with complaints about financial companies will in most cases be forced to settle the dispute in arbitration, an out-of-court procedure that often favors deep-pocketed companies and usually can’t be appealed. With Vice President Mike Pence casting the tie-breaking vote, the Senate voted 51 to 50 to eliminate a rule, finalized in July by the Consumer Financial Protection Bureau, that would have made it easier for consumers to join class-action lawsuits to fight alleged misconduct by financial institutions. Under the Congressional Review Act, lawmakers can vacate government agency regulations 60 legislative days after their introduction. The House already voted against the rule, so it is effectively dead. It would have gone into full effect in 2018. Consumers Union, the policy and mobilization division of Consumer Reports, had strenuously supported the CFPB’s rule to give consumers the option to join in class actions against financial institutions”.
- 35.
See: Are California pensions ‘sacrosanct?’ State Supreme Court hears challenge to Jerry Brown’s law. By Wes Venteicher. May 05, 2020. https://www.sacbee.com/news/politics-government/the-state-worker/article242524421.html.
See: Harzewski vs. Guidant Corporation, 489 F.3d. 799 (2007, US Seventh Circuit Court of Appeals) (under ERISA, former employees can sue pension plans). https://www.casemine.com/judgement/us/59146e09add7b0493432e5b3.
See: “Unions, retirees sue to block Chicago pension changes”. By Karen Pierog. December 16, 2014. https://www.reuters.com/article/usa-chicago-pensions-lawsuit/update-2-unions-retirees-sue-to-block-chicago-pension-changes-idUSL1N0U01MO20141216. (states in part: “The lawsuit asks the court to declare the law void and illegal because pensions will be reduced in violation of a constitutional provision prohibiting the diminishment or impairment of public employee retirement benefits. A similar argument by unions and others led to a November 21 Sangamon County Circuit Court ruling that tossed Illinois’ 2013 pension reform law for being unconstitutional. The Illinois Supreme Court will hear arguments in March over the state’s appeal of that ruling. Illinois has the worst-funded state pension fund, while Chicago is struggling with a huge pension funding burden. Moody’s Investors Service has said the city is an ‘extreme outlier’ among U.S. local governments it rates, citing a $32 billion adjusted net pension liability that is equal to eight times operating revenue. A hearing on a temporary restraining order to stop the January 1 implementation of Chicago’s pension law is set for December 29, according to AFSCME spokesman Anders Lindall. He said last month’s ruling on Illinois’ law, along with a state supreme court ruling in July over state retiree health care, have reinforced constitutional protections for retirement benefits”).
- 36.
See: “Consumer Protection Agency Is Failing Student Loan Borrowers, Lawsuit Says”. November 25, 2019. https://www.npr.org/2019/11/25/782460891/consumer-agency-failed-to-protect-student-loan-borrowers-lawsuit-says. This article states in part: “A nonprofit student loan group is suing the nation’s most powerful consumer watchdog agency. The lawsuit, first obtained by NPR, alleges that the Consumer Financial Protection Bureau has abandoned its obligation to oversee companies that manage student loans, in particular a troubled loan forgiveness program. ‘We are suing the Department of Education and the CFPB because they are not doing their jobs,’ says Natalia Abrams, the founder of Student Debt Crisis. Abrams’ group works both on policy issues and directly with borrowers”.
- 37.
This refers to the mandatory disclosure of Pay-Ratios which is required by Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (United States, 2017). Under this regulation, each exchange-traded company must disclose its “Pay-Ratio” (the ratio of its CEO’s compensation to its median employee salary). The US government also created a “Say on Pay” mandatory-disclosure requirement for companies that obtained funds from the US government’s Troubled Asset Relief Program (TARP)—the regulation grants shareholders (of such investee-companies) the right to vote on executive compensation issues.
- 38.
See: Barlas, S. (June 2012). Volcker Rule: Unleashes Stream of Complaints: Chastened by Criticism from a Variety of Sources – Including Financial Executives Worried About Its Impact on Access to Capital – Federal Banking Regulators Say They Will Miss the July 21 Deadline for Finalizing the ‘Volcker Rule,’ Part of the Swee** Dodd-Frank Act. Financial Executive, 28(5).
- 39.
See: You Still Can’t Sue Your Bank. So What Can You Do? How to make arbitration work in disputes with your financial institution”. By Tobie Stanger. October 25, 2017. https://www.consumerreports.org/contracts-arbitration/you-still-cant-sue-your-bank-arbitration-cfpb/.
- 40.
See: Phillips, N., LeBaron, G. & Wallin, S. (June 2018). Map** and Measuring the Effectiveness of Labor-Related Disclosure Requirements for Global Supply Chains. International Labour Office, Research Department Working Paper No. 32. https://www.ilo.org/wcmsp5/groups/public/%2D%2D-dgreports/%2D%2D-inst/documents/publication/wcms_632120.pdf.
- 41.
See: “Why the US Dollar Is the Global Currency”. July 23, 2020. https://www.thebalance.com/world-currency-3305931. This article states in part: “As of 2018, the U.S. had US$1671 billion in circulation. As much as half that value is estimated to be in circulation abroad. Many of these bills are in the former Soviet Union countries and in Latin America. They are often used as hard currency in day-to-day transactions. In the foreign exchange market, the dollar rules. Around 90% of forex trading involves the U.S. dollar. The dollar is just one of the world’s 185 currencies according to the International Standards Organization List, but most of these currencies are only used inside their own countries … Almost 40% of the world’s debt is issued in dollars. As a result, foreign banks need a lot of dollars to conduct business. This became evident during the 2008 financial crisis. Non-American banks had $27 trillion in international liabilities denominated in foreign currencies. Of that, $18 trillion was in U.S. dollars. As a result, the U.S. Federal Reserve had to increase its dollar swap line. That was the only way to keep the world’s banks from running out of dollars. The financial crisis made the dollar even more widely used. In 2018, the banks of Germany, France and Great Britain held more liabilities denominated in dollars than in their own currencies. Additionally, bank regulations enacted to prevent another crisis have made dollars scarce, and the Federal Reserve has increased the fed funds rate. That decreases the money supply by making dollars more expensive to borrow”.
See: “Share of Currencies in Global Foreign Exchange Reserves From 2009 to 2019”. https://www.statista.com/statistics/233674/distribution-of-global-currency-reserves/.
See: “Dominant Currencies and the Limits of Exchange Rate Flexibility”. July 20, 2020. By Gustavo Adler, Gita Gopinath and Carolina Osorio Buitron. IMF. https://blogs.imf.org/2020/07/20/currencies-and-crisis-how-dominant-currencies-limit-the-impact-of-exchange-rate-flexibility/.
- 42.
See: Shearman and Sterling (2013). Dodd-Frank, UK, EU, & Other Regulatory Reforms. Available at: www.shearman.com/dodd-frank/.
- 43.
See: In Re: HAL, Inc., 122 F.3d. 851 (CA9, 1997).
See: Caughey, B. (2011). A Creditor’s Right to Setoff: When Does a Creditor Impermissibly Improve Its Position? Available at: www.icemiller.com/publications/Creditor%27s_Right_to_Setoff_ABI.pdf.
- 44.
See: The Administrative Procedure Act, 5 U.S.C.§551.
See: Vermont Yankee Nuclear Power Corp. vs. Natural Resources Defense Council, 98 S.Ct. 1197; 435 U.S. 519 (1978).
- 45.
See: Crowell vs. Benson, 285 U.S. 22, 36–37 (1932; US Supreme Court).
See: Whitman vs. Am Trucking Ass’ns Inc., 531 U.S. 457, 473 (2011; US Supreme Court).
See: Smith, L. (n.d.). A Note on Non-Article III Courts. Available at: www.heritage.org/constitution/#!/articles/3/essays/106/a-note-on-non-article-iii-courts.
- 46.
See: Northern Pipeline Constr. Co. vs. Marathon Pipe Line Co, 458 U.S. 50, 73 (1982; US Supreme Court).
- 47.
See: Kucana vs. Holder, 130 S.Ct. 827 (2010; US Supreme Court) (implying that through the enactment of statutes, the US Congress can limit the jurisdiction of the federal courts).
- 48.
See: Northern Pipeline Constr. Co. vs. Marathon Pipe Line Co., 458 U.S. 50, 73 (1982; US Supreme Court).
- 49.
See: Hoffman Estates vs. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982; US Supreme Court).
See: Skilling vs. United States, 130 S. Ct. 2896, 2934 (2010; US Supreme Court).
- 50.
See: Gonzales vs. Carhart, 550 U.S. 124, 168 (2007; US Supreme Court).
- 51.
See: Hill vs. Colorado, 530 U.S. 703 (2000; US Supreme Court).
- 52.
See: Tuilaepa vs. California, 512 U.S. 967 (1994; US Supreme Court).
- 53.
See: Gentile vs. State Bar of Nevada, 501 U.S. 1030 (1991; US Supreme Court).
- 54.
See: City of Mesquite vs. Aladdin’s Castle, Inc., 455 U.S. 283 (1982; US Supreme Court).
- 55.
See: PennEast Pipeline Co. vs. New Jersey, ___ US ___ (No. 19-1039; US Supreme Court; pending as of 2021).
See: Seila Law LLC vs. Consumer Financial Protection Bureau, ____ US ____ (Case#: No. 19-7; US Supreme Court; 2020) (the Consumer Financial Protection Bureau’s single-Director structure violates the Separation of Powers Doctrine, and the proper remedy is to make the Director removable by the President at will.).
- 56.
- 57.
See: Nwogugu, M. (2012c). Risk in the Global Real Estate Market (John Wiley; 2012) (introducing the “Substitution Theory” [p. 198] and the “Substantial Inducement Theory” [p. 9]).
- 58.
See: 12 U.S.C. § 5394 (Dodd-Frank Act § 214) (this clause prevents any future government bailouts for troubled financial institutions).
See: Woo (2011), Ben-Ishai and Lubben (2011), Smolinsky (2011), Goddard (2011), Paulus (2011), Sivon and Natter (2011), Gordon and Muller (2010), Noss and Sowerbutts (2012), Otker-Robe et al. (2011), Schmid (2012), Gordon and Muller (2011), Jackson (2009), Cihak and Nier (2012), Reeves and Stucke (2011), and Brewer and Jagtiani (2013).
See: Markham (2011) (noting that “Antitrust law could make a greater contribution in resolving this public-policy problem if Congress enacted or the judiciary forged more robust rules preventing and dismantling unwieldy corporate size in excess of any plausible scale efficiency justification”).
- 59.
The United States District Court for the District of Columbia has adopted Local Civil Rule 85. Available at: www.dcd.uscourts.gov/dcd/sites/dcd/files/DFWSR.pdf. It may be argued that these procedures in Local Civil Rule 85 effectively modify OLA and provide for procedural and substantive due process.
- 60.
See: Washington v. Glucksberg, 521 U.S. 702, 719 (US Supreme Court; 1997) (“The Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint.”).
See: Obergefell vs. Hodges: 576 U. S. 644 (US Supreme Court; 2015).
See: Lawrence vs. Texas, 539 U. S. 558 (US Supreme Court; 2003).
See: United States vs. Vaello-Madero, _____ US ____ (Case#: 20-303; US Supreme Court; pending as of 2021).
See: DeNolf vs. U.S., _____ US _____ (US Supreme Court; pending as of 2021) (https://static1.squarespace.com/static/5b660749620b85c6c73e5e61/t/608d544886d55300e492a619/1619874888658/2021-22+AMCA+Case.pdf).
See: DeNolf vs. U.S., (Case#: 01-76320; US 14th Circuit, 2020) (https://static1.squarespace.com/static/5b660749620b85c6c73e5e61/t/608d544886d55300e492a619/1619874888658/2021-22+AMCA+Case.pdf).
See: Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 848 (1992) (“Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects”).
- 61.
See: Rose and Walker (2013) (supra).
- 62.
See the discussions of the Right-to-Contract Clause in Nwogugu (2012c) (supra).
See: Energy Reserves Group, Inc. vs. Kansas Power and Light Co., _____ US ____ (US Supreme Court; 1983).
See: Sveen vs. Melin, ___ US ____ (US Supreme Court; 2018).
- 63.
See the discussions of the Equal Protection Clause of the US Constitution in various contexts in Nwogugu (2012c).
See: United States vs. Vaello-Madero, _____ US ____ (Case#: 20-303; US Supreme Court; pending as of 2021).
See: Espinoza vs. Montana Department of Revenue, _____ US ____ (US Supreme Court; pending as of 2021).
- 64.
See: Nwogugu (2012c) (supra).
See: DeNolf vs. U.S., _____ US _____ (US Supreme Court; pending as of 2021) (https://static1.squarespace.com/static/5b660749620b85c6c73e5e61/t/608d544886d55300e492a619/1619874888658/2021-22+AMCA+Case.pdf).
See: DeNolf vs. U.S., (Case#: 01-76320; US 14th Circuit, 2020) (https://static1.squarespace.com/static/5b660749620b85c6c73e5e61/t/608d544886d55300e492a619/1619874888658/2021-22+AMCA+Case.pdf).
See: Perez vs. United States, 402 U.S. 146, 150 (1971) (Congress can ban loansharking that threatens interstate commerce).
See: Gonzales vs. Raich, 545 U.S. 1, 18 (US Supreme Court; 2005).
- 65.
See: Federal Republic of Germany et al. vs. Philipp et al. (No. 19–351; February 3, 2021; US Supreme Court). https://www.supremecourt.gov/opinions/20pdf/19-351_o7jp.pdf.
See: Republic of Austria v. Altmann, 541 U. S. 677 (US Supreme Court).
See: Bolivarian Republic of Venezuela vs. Helmerich & Payne Int’l Drilling Co., 581 U. S._____ (2017; US Supreme Court).
- 66.
See: Nwogugu (2012c: 109, 144, 190 & 246).
See: Cedar Point Nursery vs. Hassid, ____ US ____ (US Supreme Court; pending as of 2021).
See: Cedar Point Nursery vs. Sheroma, ____ F.3d. ____ (US Ninth Circuit Court of Appeals).
See: PennEast Pipeline Co. vs. New Jersey, ___ US ____ (US Supreme Court; pending as of 2021).
See: Murr vs. Wisconsin, 137 S.Ct. 1933 (US Supreme Court; 2017).
See: California Bldg. Industry Ass’n vs. City of San Jose, Calif., 136 S.Ct. 928 (US Supreme Court; 2016).
See: Koontz vs. St. Johns River Water Management District, 570 U.S. 2588 (US Supreme Court; 2013).
See: Lucas vs. South Carolina Coastal Council, 505 U.S. 1003 (US Supreme Court; 1992).
- 67.
See: Trump v. Sierra Club, ___ US ___ (US Supreme Court; pending as of 2021).
See: National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012; US Supreme Court).
See: South Dakota v. Dole, ____ US _____ (US Supreme Court; 1987).
- 68.
See: Seila Law LLC vs. Consumer Financial Protection Bureau, ____ US ____ (Case#: No. 19-7; US Supreme Court; 2020) (the Consumer Financial Protection Bureau’s single-Director structure violates the Separation of Powers Doctrine, and the proper remedy is to sever the Director’s statutory for-cause removal restriction).
- 69.
See: Collins vs. Yellen, ___ US ___ (No. 19-422; US Supreme Court; pending as of 2021).
See: Collins vs. Mnuchin, ____ US _____ (Docket No. 19-422; US Supreme Court; pending as of 2021).
See: Humphrey’s Executor vs. United States, 295 U.S. 602 (US Supreme Court; 1935).
See: PHH Corp. vs. CFPB, 839 F.3d 1 (2016) on rehearing enbanc, , 881 F.3d 75 (D.C. Cir., 2018) (en banc).
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Nwogugu, M.I.C. (2021). Sustainable Growth, Financial Stability and the Failure/Unconstitutionality of the Dodd-Frank Act (USA) (and Similar Statutes Such as the Pre-2020 European Union Sustainable Growth Regulations). In: Geopolitical Risk, Sustainability and “Cross-Border Spillovers” in Emerging Markets, Volume II. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-71419-2_2
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