Host Gregg N. Sofer welcomes back to the podcast Richard Epstein, Laurence A. Tisch Professor of Law at New York University Law School, and Steve Renau, Husch Blackwell’s Head of Thought Leadership, to discuss the U.S. Supreme Court’s recent decision in Securities and Exchange Commission v. Jarkesy. The Court held 6-3 that the Seventh Amendment’s guarantee of a jury trial requires the SEC to pursue civil penalties for securities-fraud violations in federal court. No longer can the SEC rely on its own in-house tribunal to secure these See more +

Host Gregg N. Sofer welcomes back to the podcast Richard Epstein, Laurence A. Tisch Professor of Law at New York University Law School, and Steve Renau, Husch Blackwell’s Head of Thought Leadership, to discuss the U.S. Supreme Court’s recent decision in Securities and Exchange Commission v. Jarkesy. The Court held 6-3 that the Seventh Amendment’s guarantee of a jury trial requires the SEC to pursue civil penalties for securities-fraud violations in federal court. No longer can the SEC rely on its own in-house tribunal to secure these penalties. Although Jarkesy applies only to the SEC, the Court’s reasoning could have far-reaching implications across a number of federal agencies, particularly when “the ‘public rights’ exception to Article III jurisdiction does not apply.”

Our discussion highlights the administrative law history that was brought to bear upon the case and how it was that the adjudication of civil penalties came to be matters before non-Article III courts. We then pivot to some of the impacts Jarkesy could have in the future, including whether the Supreme Court will take up related issues of due process in future challenges to federal agency enforcement actions.

Finally, we discuss Jarkesy in light of the Supreme Court’s Loper Bright decision that ended the doctrine of Chevron deference and the implications of both decisions for administrative agencies and the private businesses they regulate. See less -