By applying the Supreme Court‘s administrative law jurisprudence to the examination of the validity of Rule 10b5-2(b)(1)—a rule recently adopted by the Securities and Exchange Commission (Commission)—this Article fills a significant gap in the existing literature. To date, commentators have argued against the rule‘s validity by applying the Supreme Court‘s securities law jurisprudence without considering the role of administrative law—despite the Court‘s comments that the pertinent statute is ambiguous, despite express delegation of rulemaking authority by Congress to the Commission, and despite developments in administrative law subsequent to the Court‘s relevant securities law decisions. By not considering the role of administrative law, commentators have approached the rule with undue skepticism. Administrative law principles dictate judicial deference to the Commission‘s rule. The Commission once commanded deference from courts. The time has come to resurrect that deference.
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September 2013, Vol. 65, No. 5
Thomas J. Horton & Robert H. Lande, Should the Internet Exempt the Media Sector From the Antitrust Laws?
Thomas J. Horton, Robert H. Lande, & Virginia Callahan, APPENDIX
Chad Flanders, Pardons and the Theory of the “Second Best”
Brett McDonnell, Dampening Financial Regulatory Cycles
Dane Ullian, Retroactive Application of State Long-Arm Statutes