May 26, 2016
More On Enforcement Discretion At The SEC
Posted by David Zaring

The Texas Law Review has published my article on the SEC ALJ controversy, which I argue should be constitutionally uncontroversial, and in which I defend ALJ adjudication.  Here's the abstract:

The Dodd-Frank Wall Street Reform Act allowed the Securities and Exchange Commission (SEC) to bring almost any claim that it can file in federal court to its own administrative law judges (ALJs). The agency has since taken up this power against a panoply of alleged insider traders and other perpetrators of securities fraud. Many targets of SEC ALJ enforcement actions have sued on equal protection, due process, and separation of powers grounds, seeking to require the agency to sue them in court, if at all. This Article evaluates the SEC’s new ALJ policy both qualitatively and quantitatively, offering an in-depth perspective on how formal adjudication— the term for the sort of adjudication over which ALJs preside—works today. It argues that the suits challenging the SEC’s administrative proceedings are without merit; agencies have almost absolute discretion as to whom and how they prosecute, and administrative proceedings, which have a long history, do not threaten the Constitution. The controversy illuminates instead dueling traditions in the increasingly intertwined doctrines of corporate and administrative law: the corporate bar expects its judges to do equity; agencies and their adjudicators are more inclined to privilege procedural regularity.

You can find the article here or here.  The constitutional claims against SEC ALJs are coming fast and furious, so it's worth taking a step back and seeing how the program actually works.  So do give it a look!

Administrative Law, Securities | Bookmark

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