August 22, 2014

PROF. PHILIP HAMBURGER: The SEC And The Cascade Of Evasions. “The SEC clearly hopes to use administrative proceedings to evade the constitutional right to jury. When discussing the recent trial losses suffered by the SEC, Ceresney defended its evasion by talking about the SEC as if it were a victim of unfortunate circumstances in court — circumstances that ordinarily are called juries. . . . But the juries have a point. The SEC, in reality, is acting as a prosecutor. Notwithstanding the pretense of “civil penalties” — a strange oxymoron — the SEC candidly proclaims on its website that ‘the SEC is a law enforcement agency.’ Indeed, its proceedings are government enforcement actions that seek to punish or correct, and they thus are criminal in nature. No surprise, then, that juries expect more than a civil burden of proof. Rather than a problem, this is a reminder of why juries are valuable.”

They’re only valuable if you want to protect individual freedom and government accountability. That’s not the SEC’s priority. And as Hamburger notes, it’s not just the SEC: “The ever widening evasion of constitutional rights is worrisome. Administrative agencies, such as the SEC, enforce important laws, but this is no justification for their evasion of rights — let alone the cascading evasions that threaten to make judges and juries nearly irrelevant. At one point or another, the judges will have to face up to the expanding evasions, and the longer they wait, the more difficult their task will be.”