The Legality of “Regulation by Enforcement” and Other Considerations, A Discussion with Special Guest, David Zaring, Professor, Wharton School of the University of Pennsylvania

Consumer Finance Monitor

The use of enforcement by the Consumer Financial Protection Bureau and other federal agencies rather than administrative rulemaking to advance novel legal theories has been widely criticized. After discussing the meaning of “regulation by enforcement,” we look at examples of the use of regulation by enforcement by the CFPB and other agencies, U.S. Supreme Court precedent regarding the legality of this approach, the choice of enforcement targets by agencies, and the role of consent orders. We conclude with a discussion of best practices that agencies should consider to broaden stakeholder participation when using enforcement to combat what they perceive to be undesirable market trends.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.