The well-known Chevron doctrine is under siege as courts continue to carve out exceptions to its scope and some scholars and judges question whether it should be overruled entirely. One ongoing battle concerns whether the doctrine, which requires courts to defer to reasonable agency interpretations of ambiguous statutes, applies to certain “split-authority” statutes administered by multiple agencies, such as the Sarbanes-Oxley Act’s whistleblower provisions (“SOX”) and similar employment statutes. Both the Department of Labor (“DOL”) and the Securities and Exchange Commission (“SEC”) administer SOX’s whistleblower provisions, with the DOL having formal adjudicative authority and the SEC having rulemaking authority, leading to the risk of the agencies rendering conflicting interpretations. This risk has led some courts and scholars to conclude that Chevron should not apply to these statutes in any circumstance. This article argues, as both a doctrinal and normative matter, that courts should accord Chevron deference to agency interpretations of SOX and similar statutes where no conflict exists (as opposed to courts constructing their own interpretations with no deference accorded to agency interpretations or applying some lesser form of deference to agency interpretations). This article further contends that the risk of a conflict occurring is greatly overstated (and certainly does not justify the rejection of Chevron to a whole category of statutes), and if a conflict does arise, it can be easily resolved as set forth herein. Other administrative law scholars have generally conducted only a cursory analysis of whether the Chevron doctrine is applicable to agency interpretations of statutes administered by multiple agencies, addressing this question in the abstract. This article, however, analyzes the issue as to SOX in particular, and in doing so, is better able to examine the multiple practical and theoretical considerations involved in the inquiry as to whether Chevron should apply. In analyzing the Chevron doctrine’s applicability to agency interpretations of SOX, this article also seeks to contribute to the scholarship on whistleblowing more generally. Although the literature is rich with discussion as to the substantive standards applicable to whistleblowing claims, scholars generally overlook the initial question of whether agencies or courts have primary interpretative authority as to split-authority whistleblowing statutes, despite this question having a significant impact on the effectiveness of these statutes. As the administrative framework utilized by SOX is similar to that of other whistleblowing statutes, this article seeks to provide insight on this foundational question of whether courts should apply Chevron deference to agency interpretations of these statutes and seeks to resolve the uncertainty that currently exists.
We root for the underdog, and nascent and potential competitors are the antitrust version of underdogs. They introduce a promising product and innovation with the hopes of challenging the incumbent for supremacy in a market. Yet, are those hopes cancelled before they even begin with powerful incumbents acquiring these nascent and potential competitors? Some even refer to these acquisitions as “killer.” However, is this the full story? Assessments of nascent and potential competition are ultimately about “what if.” What if the upstart competitor grows into the next dominant platform or develops the next blockbuster drug? What if the incumbent knows its market position has a weakness that the entrant will exploit so the incumbent must end the competition before it even begins? On the other hand, what if the nascent competitor never fully develops its potential and engages in a series of missteps? What if the nascent competitor’s innovation can be improved upon and reach the market faster and more widely through the well-oiled machinery of the incumbent? These are all possible scenarios. The problem is that the counterfactual world is never actually observable. Thus, speculative “what ifs” cannot guide antitrust policy—whether in an overly permissive or aggressive manner. What are we left with? What should agencies and courts do in face of such uncertainty? This Article offers a number of propositions to address these concerns and questions in regard to competition that has not been fully realized. First, the Article offers a clear legal and analytical delineation between the doctrines of nascent and potential competition—as there has recently been a degree of “semantic satiation” between these two concepts. Second, some have argued that the acquisition of nascent competitors should be adjudicated using legal standards developed under the Sherman Act, Section 2, which covers monopolization, rather than under the traditional Clayton Act, Section 7, which governs mergers and acquisitions. Yet, the counterfactual exercise is fundamentally different between ex ante merger evaluations (Section 7) and ex post monopolization claims (Section 2). Consequently, based on this fact alone, courts should be cautious to adopt Section 2 approaches to Section 7 issues. Third, when evaluating the wider set of proposals to address the nascent and potential competition problem, which the Article comments on, we must ask whether there is a problem in the first place. To that end, the Article examines a number of recent merger retrospectives. Finally, while using the past to predict the future can be a difficult and uncertain exercise even within mature markets, these hinderances can be overstated. Economic tools are available to frame our approach, and agencies and courts should focus particularly on whether the characteristics and nature of the acquired nascent competitor are sufficiently differentiated from the remaining competitors to warrant increased scrutiny.
The Foreign Intelligence Surveillance Act (FISA) has never been more controversial. Enacted to bolster surveillance's institutional framework after the excesses of J. Edgar Hoover's FBI, FISA's deficits have been front and center due to the Justice Department Inspector General's report on the flawed Carter Page FISA request and disclosures of excessive FBI querying of U.S. person information under § 702 of the FISA Amendments Act. This paper suggests that current problems have their roots in the failure of both the FBI and the Department of Justice (DOJ) to learn the lessons of FISA's origins and history. Reading the pre-history of FISA requires a look at the troubled history of FBI-DOJ interaction on surveillance. From World War II to the wiretap on Dr. Martin Luther King, Jr. in the 1960s, the Justice Department has acquiesced in regulatory capture by the FBI. Under Hoover, the FBI used its information advantage and edge in personal relationships with the politically powerful to ramp up its surveillance mechanism. FISA was supposed to restore the institutional balance between DOJ and the FBI, but without commitment in practice FISA is just a flow chart. The Foreign Intelligence Surveillance Court (FISC) can reinvigorate dialogue between DOJ and the FBI, but it can do so only if DOJ and the FBI cooperate to provide the FISC with accurate information. That paradox has created an impasse that the Carter Page FISA request and § 702 querying excesses have highlighted. To remedy the regulatory capture that continues to afflict the FISA process, this paper proposes a public advocate at the FISC, de novo high-level administrative review of FISA requests, introduction of machine learning models for quality control, and appointment of a special master for technology. These measures will not eliminate the risk of regulatory capture. But they will spur cultural change, enabling the gatekeeping framework of FISA to better balance liberty and security.
