DISTINGUISHED JURIST LECTURES
NOVEMBER 11, 2019 market participants and enforcement initiatives. One of the Modernizing Our Regulatory Framework: Focus on Authority, Expertise & Long-Term Investor Interests specific initiatives the Chairman mentioned was educating Jay Clayton L’93, Chairman, U.S. Securities and Exchange Commission
Chairman Clayton summarized the Commission’s work over the past year on behalf of investors and markets and provided a preview of its agenda for 2020. The Chairman covered three topics. First, he addressed the Commission’s actions over the past year. He explained the Commission’s “organic” and transparent approach to agenda-setting, and certain of its key modernization efforts. He also included a more general discussion of modernization as an effective policy-making lens for an administrative agency. The Commission’s modernization initiatives include rules promulgated during the summer of 2019 regarding retail investors’ relationships with their financial professionals, an optional “notice and access” delivery method for making shareholder reports accessible to investors on a publicly-available website, and approval of Exchange Traded Funds that meet stated criteria without the need for an individual exemption. Second, the Chairman spoke about the Commission’s “engagement agenda.” This involves the Commission’s critical functions of market monitoring, public outreach and investor education, along with its oversight of
teachers and those in military service. Finally, he addressed the interaction of the Commission’s mission, the statutory constructs under which it operates, and market realities, along with other factors, in the ongoing evolution of its agenda, with a specific discussion of the relationship among scope of authority, scope of actions, and independence. Chairman Clayton was nominated to chair the Commission on January 20, 2017 by President Trump and sworn in on May 4, 2017. Prior to joining the Commission, Chairman Clayton was a partner at Sullivan & Cromwell LLP, where he was a member of the firm’s Management Committee and co-head of the firm’s corporate practice. He also served as an adjunct professor at Penn Law. Prior to joining Sullivan & Cromwell, Chairman Clayton served as a law clerk for the Honorable Marvin Katz of the U.S. District Court for the Eastern District of Pennsylvania. A member of the New York and Washington, D.C. bars, Chairman Clayton earned a B.S. in Engineering from the University of Pennsylvania (summa cum laude), a B.A. and M.A. in Economics from the University of Cambridge (Thouron Scholar), and a J.D. from the University of Pennsylvania Law School (cum laude, Order of the Coif ).
OCTOBER 16, 2018 How Some Appellate Judges Think Hon. Thomas Ambro, Judge, U.S. Court of Appeals for the Third Circuit
Inspired by his initial thoughts about how to handle his “craft” when taking the bench on the Third Circuit, Judge Ambro commented on the efforts by two scholars to explain how appellate judges think. Starting with Hon. Richard Posner’s nine theories of appellate decisions, Judge Ambro explained each of the theories and presented examples. Judge Ambro noted that Judge Posner espoused the seventh — the pragmatist theory — as the way judges should decide cases. Under the pragmatist theory, judges should ask themselves about the consequences of their decisions, i.e., how will the decision affect the next case. In contrast, Judge Posner particularly disdained the ninth theory — the legalist theory — in which judges just follow the law, applying the facts and leading to the conclusion. Judge Ambro offered an analysis supporting Judge Posner’s embrace of the pragmatist theory. In particular, Judge Ambro advised those who do appellate advocacy to present some reasoning for their requested relief beyond the text of the statute. Judge Ambro continued by describing a second scholar’s work on the
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methodology of the Supreme Court, breaking down the approach of the then-sitting Justices into four camps: textualist, structuralist, consequentialist, and fairness. Judge Ambro concluded with some comments on the effectiveness of advocating before the Supreme Court. He observed that the great Supreme Court practitioners present their argument in no more than three themes, to which they commit in their argument. Judge Ambro was nominated by President Bill Clinton in 1999 and confirmed by the Senate and sworn in in 2000. He clerked for Hon. Daniel Herrmann, Delaware Supreme Court from 1975 to 1976. He was in private practice at Richards, Layton & Finger in Wilmington, Delaware from 1976 until taking his seat on the bench. Just prior to being elevated to the bench, Judge Ambro headed the bankruptcy practice at Richards Layton. Judge Ambro is a past Chair of the Section of Business Law of the American Bar Association and past Editor-in-Chief of The Business Lawyer. For 20 years, he chaired the Committee on the Uniform Commercial Code for the Commercial Law Section of the Delaware State Bar Association. The judge received his Bachelor of Arts degree in 1971 from Georgetown University and his Juris Doctor in 1975 from Georgetown University Law Center.
