Shakespeare Meets ALJs: Much Ado About Nothing

In a recent oral argument before the U.S. Supreme Court, conservatives urged the Court to outlaw the use of administrative law judges (ALJs) in agency enforcement actions.  The Consumer Financial Protection Bureau is paying notice. On January 31, 2018, the CFPB reprised the ALJ debate in its second Request for Information under Acting Director Mick Mulvaney. This RFI asked:  should the CFPB shift course to litigate all of its enforcement cases in federal court and none before ALJs? Suffice it to say, there is less here than meets the eye. In a comment letter by former regulators and scholars of financial regulation and consumer protection, David Zaring at Wharton points out that the CFPB barely even uses ALJs. In the six-plus years of its existence, the Bureau has only diverted eight initially contested matters to ALJs. All but two of those cases settled and in all but one–the PHH case–the monetary relief was modest. In short, the CFPB's use of ALJs…

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