En Banc Roundtable

Welcome to the Vanderbilt Law Review En Banc Roundtable. This new feature will host debates among legal academics and practitioners on notable cases pending before the U.S. Supreme Court. The subject of these articles can be on anything related to the selected case, such as the merits of a particular argument, the practical implications of a potential ruling, or the propriety of certiorari in the case. Vanderbilt Law Review believes that Roundtable will uniquely blend the importance of scholarly debate on timely legal issues with the benefit of shorter turnaround time afforded by online publication. These debates will allow for participants to voice their views in a scholarly forum while the law is simultaneously being made at the highest levels.

Our first debate is on Free Enterprise Fund v. Public Company Accounting Oversight Board and features several administrative law scholars. Professor Peter Strauss’s introductory piece lays the foundation for the debate. The “first takes” from Professors Steven Calabresi, Gary Lawson, Hal Bruff, Rick Pildes, and Christopher Yoo are below. On December 7, we will publish responses by all of the authors. We hope you find the Roundtable informative and engaging.

Remove Morrison v. Olson

Steven G. Calabresi & Christopher S. Yoo 
CITATION
Steven G. Calabresi & Christopher S. Yoo, Remove Morrison v. Olson , 62 Vand. L. Rev. En Banc 103 (2009)

Putting Power Back Into Separation of Powers Analysis: Why the SEC-PCAOB Structure is Constitutional

Richard H. Pildes 
This article has two aims: to explain the historical context and reasons that led Congress to design the administrative structure at issue in Free Enterprise Fund, and to provide a realistic account of how that structure actually functions in practice. The article is, thus, a kind of “Brandeis brief” for this important case concerning the constitutional structure for the administrative state.  The article seeks to provide a rich understanding of the unique, long-established structures of financial regulation and an appreciation for how the administrative structures at issue actually work.  With a clear understanding of these elements in mind, the article argues that the Court should find the Sarbanes-Oxley Act constitutional.
CITATION
Richard H. Pildes, Putting Power Back Into Separation of Powers Analysis: Why the SEC-PCAOB Structure is Constitutional, 62 Vand. L. Rev. En Banc 85 (2009)

The “Principal” Reason Why the PCAOB is Unconstitutional

Gary Lawson 
CITATION
Gary Lawson, The “Principal” Reason Why the PCAOB is Unconstitutional, 62 Vand. L. Rev. En Banc 73 (2009)

Bringing the Independent Agencies in from the Cold

Harold H. Bruff 
Invalidating the PCAOB would cause unnecessary disruption to the Federal Government. The supervisory powers of the SEC over the agency justify concluding that its members are inferior officers. The removal provision can be sustained by confirming that the President has constitutional powers of removal that are appropriate to the function involved. The President’s power to remove SEC commissioners can be the tool for implementing his supervisory authority.
CITATION
Harold H. Bruff, Bringing the Independent Agencies in from the Cold, 62 Vand. L. Rev. En Banc 63 (2009)

Free Enterprise Fund v. Public Company Accounting Oversight Board

Peter L. Strauss 
This is the introductory essay in an electronically published roundtable sponsored by the Vanderbilt Law Review on the Supreme Court’s forthcoming consideration of Free Enterprise Fund v. Public Company Accounting Oversight Board, a case raising important separation of powers questions and thought by some to foreshadow overruling or limiting of such precedents as Humphrey’s Executor v. United States (sustaining independent regulatory commissions) and Morrison v. Olson (sustaining the independent counsel). The PCAOB is an unusual independent government authority appointed by the Commissioners of the SEC and subject to its oversight; PCAOB members are only by the Commission, and only for one of several defined causes. This essay is intended to “set the table” for competing essays by other scholars, that will appear in November.
CITATION
Peter L. Strauss, Free Enterprise Fund v. Public Company Accounting Oversight Board, 62 Vand. L. Rev. En Banc 51 (2009)