Marcia Narine is a rising star in corporate law academia and the blawgosphere who I've been following with interest for some time. In her latest post at Business Law Professor Blog she poses the following questions as Dodd-Frank turns 4. So I thought I'd try my hand at offering some answers:
1) When Dodd-Frank turns five next year, how far behind will we still be, and will we have suffered another financial blip/setback/recession/crisis that supporters say could have been prevented by Dodd-Frank?
I'm not a macro economist, so I have no idea whether the economy will tank in the next year (but if forced to guess with a gun to my head, I'd say no). As for being behind, she is referring to the fact that the regulatory agencies have only adopted about half of the rules Congress mandated in the Dodd Frank statute. My prediction: In July 2015, about 65% of the required Dodd Frank rulemaking proceedings will have resulted in a final rule but at least 15% will still not have even resulted in a proposed rule.
2) How will the results of the mid-term elections affect the funding of the agencies charged with implementing the law?
Obviously, the big question here is whether the GOP takes control of the Senate. My current guess is that we end up with a 50-50 Senate, with Biden throwing control to the Democracts (and thereby being so busy that he has no chance of beating Hillary for the 2016 Democrat nod). If so, we're looking at high odds of a budgetary train wreck.
3) What will the SEC do to address the Dodd-Frank rules that have already been invalidated or rendered otherwise less effective after litigation from business groups such as §1502, Conflict Minerals Rule (see here for SEC response) or §1504, the Resource Extraction Rule (see here for court decision)?
Both of those rules are pet favorites of the left, so I see the SEC's three Democrat members facing enormous political pressure to get them into law by 2016.
4) Given the SEC's failure to appeal after the proxy access litigation and the success of the lawsuits mentioned above, will other Dodd-Frank mandates be vulnerable to legal challenge?
I think the SEC has finally figured out that it has to throw a lot of resources into doing cost/benefit analysis of its rules and that it has to stick to the limits of its statutory authority. If I'm right, their new rules should be less vulnerable to challenge. In addition, given that Obama's finally been able to tilt the DC Circuit to the Democrat side (7-4), the odds are much better that any challenge will be decided by a pro-SEC panel.
5) Will the whistleblower provision that provides 10-30% of any recovery over $1 million to qualified persons prevent the next Bernie Madoff scandal? I met with the SEC, members of Congress and testified about some of my concerns about that provision before entering academia, and I hope to be proved wrong.
I have no idea. But I did read an interesting article on health care fraud whistleblowers in today's WSJ. Does that count for anything?