Non-Delegation Doctrine, FTC's Non-Compete Rule and Green Guides ... Oh My!
The Justice Insiders: The Administrative State is Not Your Friend - A Conversation with Professor Richard Epstein
In a much-watched case concerning the administrative state, on June 27, the Supreme Court decided in SEC v. Jarkesy that defendants facing a fraud suit by the SEC have a Seventh Amendment right to a jury trial in an Article...more
An impending Supreme Court decision is poised to transform how the National Labor Relations Board decides cases and may fundamentally alter the course of labor relations as we know it. We predict that a SCOTUS decision to be...more
In recent years, independent agencies have continued to face a number of constitutional and statutory challenges before the Supreme Court. AMG Capital Management struck down the Federal Trade Commission’s authority to obtain...more
One of the most significant areas of the law for businesses is administrative law. From questions about a new industry-specific regulation to marshaling a defense against enforcement proceedings, any entity that is subject to...more
It’s not just the New York Yankees that wish they could put the summer behind them. We previously wrote about the shocking blow the D.C. Circuit Court of Appeals dealt FINRA in early July by enjoining the self-regulatory...more
The U.S. Supreme Court on June 30, 2023, agreed to hear the case of SEC v. Jarkesy.1 The case is an appeal of a U.S. Court of Appeals for the Fifth Circuit decision that held that the U.S. Securities and Exchange Commission's...more
When the Securities and Exchange Commission (SEC) decides to pursue formal enforcement proceedings against a company or individual, it can choose whether to do so in an Article III court, or through the SEC’s own...more
A groundbreaking decision released by the Fifth Circuit on May 18 signals a changing landscape for federal administrative law and the separation of powers. In Jarkesy v. Securities and Exchange Commission, 34 F.4th 446 (5th...more
In this episode of The Justice Insiders, we welcome Richard A. Epstein, Laurence A. Tisch Professor of Law at NYU School of Law. Host Gregg Sofer and co-host Steve Renau explore with Professor Epstein the implications...more
Key Points On May 18, 2022, in Jarkesy v. SEC, No. 20-61007 (5th Cir. May 18, 2022), a split panel of the U.S. Court of Appeals for the Fifth Circuit identified three independent constitutional flaws in the administrative...more
The SEC’s increased use of its own "home court" for enforcement proceedings has triggered constitutional challenges to SEC administrative proceedings (APs). See "Defendants Challenge SEC’s Increased Use of Administrative...more
Last week, the United States Court of Appeals for the Eleventh Circuit held that a district court cannot hear constitutional challenges to an ongoing administration enforcement action of the U.S. Securities and Exchange...more
The citadel of the SEC’s administrative forum has been under assault from several vectors over the past year or so, as a chorus of dissenting Respondents have mounted increasing challenges to its constitutional legitimacy, as...more
The U.S. Court of Appeals for the District of Columbia Circuit held today that federal District Courts do not have subject-matter jurisdiction to entertain challenges to ongoing SEC administrative enforcement proceedings. A...more
As we discussed in a post last November, the SEC’s increasing use of enforcement proceedings before its own administrative law judges (ALJs), rather than before federal court judges, has spawned a number of constitutional...more