When regulators adopt a major set of new rules (as when businesses launch a major new activity), they must do so on the basis that the rules will have some positive, predictable benefit that can be observed reasonably. Picking up on Commissioner Piwowar's comment about the lack of economic analysis, what effect will the new rules have on the mortgage markets or the financial markets generally? Does the rule make it harder or easier to get a mortgage? How does the rule affect the willingness…

The Original Letter contained criteria that raised difficult compliance issues for firms. While the Revised Letter goes a long way toward resolving these difficulties, firms still should be aware of certain important issues.

1. No Requirement to File for Relief. While the Original Letter required firms to file requests for registration relief for CPO delegations, the Revised Letter dispenses with this requirement. In addition to relieving the CFTC of the administrative burden of…

Bad process leads to bad substance. Whether or not one cares about the process of rulemaking or the quality of rules that are adopted, this is a problematic decision. The Court's conclusion that, because the CFTC has called its document "guidance," the requirements that it imposes do not constitute a rule will create deep uncertainty in the market. But a more profound message of the decision may be that the government need not abide by the rules it imposes on itself.

The judge's…

Please note the dissenting opinions, which are well reasoned.