Rolling Back Trade and Regulation Could Hurt Global M&A: Strine
Chief Justice Strine

President-elect Donald Trump ought to learn from the struggles facing the U.K. in the wake of Brexit when it comes to regulation and trade, Del. Supreme Court Chief Justice Leo Strine Jr. told attendees of The Deal Economy conference on Thursday in New York.

Carelessly tearing up trade treaties like the Trans Pacific Partnership (TPP) and repealing legislation such as the Dodd-Frank Act, the law created in response to the Great Recession, and the Affordable Care Act, the health reform better known as Obamacare, would fuel significant global uncertainty that could ultimately create paralysis in the dealmaking world, Strine warned on a panel discussion moderated by The Deal's Bill McConnell.

Jonathan R. Macey, the Sam Harris Professor of Corporate Law, Corporate Finance and Securities Law at Yale Law School, also participated on the panel: "Beyond the Election: Regulatory Outlook for Corporate America and Wall Street."

Before "precipitous" actions are taken against such legislation along with trade agreements like the TPP, however imperfect they may be, Strine said the new administration ought to learn from Britain's exit from the EU: "Can you listen to the discontent about forms of nationalism that hasn't worked for them?"

The tone the U.S. sets is very important, Strine added on the sidelines of the conference following the panel, explaining that if a market leader acts in a more "protectionist" way, it will invite other market leaders around the world to follow suit. Given that a lot of trade agreements haven't necessarily been sensitive to working class people, that could create a deal environment in which you have the U.S. government examining how a takeover proposal is going to threaten domestic jobs. This added uncertainty could lead dealmakers to freeze up, Strine noted.

Other topics of discussion between Strine and Macey included the structure and tone of regulatory agencies, including the Consumer Financial Protection Bureau (CFPB), which is charged with protecting consumers from unfair banking practices, as well as the Securities and Exchange Commission.

"We have fundamentally screwed up the incentives we provide administrative agencies to operate," Macey said, explaining that changes in regulatory personnel and structure could end what he described as the warfare between the Federal courts and agencies.

For instance, the country could see changes on Day 1 of the Trump administration at the CFPB, Macey suggested: "It's a pretty lawless organization in my point of view and one that could be normalized."

Under Dodd-Frank, the CFPB receives its funding from the Federal Reserve and is run by one executive, which means its stream of funding is without congressional oversight. Macey said he agrees that this structure is unconstitutional, suggesting it ought to be run by a panel like other regulatory bodies such as the SEC, whose structure encompasses a five-person panel from both of the major political parties.

In agreement, Strine added that there's a real opportunity to bring the culture back to one in which bipartisan-oriented agencies work in concert with the Senate Minority leader.

"There are some issues that we're all American on," Strine said. "That type of predictability would be useful for people trying to do a transaction."

Both panelists also spoke to the need to establish a less-politicized Supreme Court, with Macey noting that since Justice Lewis Powell, who served from 1972 to 1987, there hasn't been anyone on the Supreme Court who's had any sophistication or experience in dealing with business issues.

The opportunity to set the tone of the federal judiciary back toward one that depicts "professionalism of government" should be looked at the same way for regulators, Strine added.

"If the president goes down that kind of path, my sense is we'll get cooperation," Strine said.

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