The SEC and the Cascade of Evasions

SECA recent WSJ editorial, The SEC as Prosecutor and Judge, comments on the SEC’s hints that it will be shifting its enforcement of insider trading laws from the courts to administrative adjudications:

A year after vowing to take more of its law-enforcement cases to trial, Securities and Exchange Commission officials now say the agency will increasingly bypass courts and juries by prosecuting wrongdoers in hearings before SEC administrative law judges, also known as ALJs. “I think you’ll see that more and more in the future,” SEC Enforcement Director Andrew Ceresney told a June gathering of Washington lawyers, adding that insider trading cases were especially likely to go before administrative judges.

Ceresney undoubtedly thinks this will be efficient — not to mention advantageous in avoiding those pesky critters known as judges and juries.

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Bond v. U.S.: Government Tells Court to Bug Out

Yesterday, the Supreme Court heard oral argument in Bond v. United States. Mrs. Bond had smeared a toxic chemical on a romantic rival’s doorknob and mailbox, resulting in a thumb burn. She was federally prosecuted for violating a federal statute that implements the international Chemical Weapons Convention. The statute is broad indeed; as Justice Alito noted in an earlier round of litigation, it makes poisoning a goldfish with vinegar a federal crime. Earlier coverage is here.

After the argument, it’s possible that the case may decide some very large constitutional questions, thanks in no small part to the government’s breathtakingly aggressive stance. The key question is whether the feds can mow constitutional federalism barriers by treaty and implementing legislation. Solicitor General Verrilli’s answer was an emphatic “yes.” Not a good idea: excerpts from the transcript (which is here) convey the justices’ incredulity.

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First Amendment Institutions

First Amendment Institutions

The next Liberty Law Talk is with Paul Horwitz on his new book, First Amendment Institutions. Horwitz challenges the dominant legal perspective on free speech in American law, which focuses on speaker and state. Instead of this acontextual approach, Horwitz poses that speech is impossible without the institutions that both form it and give it the opportunity to be heard. Institutions are the "scaffolding" of the individual's right to free speech and should be accorded greater autonomy from the state in their self-government. Horwitz would include many state institutions in this category. Thus, the law, in regulating or permitting speech,…

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The Court’s Business

In addition to an excellent exchange my excellent book, balkinization has many other excellent things—such as yesterday’s post by Mark Graber. It suggests that the Supreme Court is reverting to the posture of a century ago, but not in the way “all of us”—meaning, progressive law profs—had been expecting. Here’s Mark’s opening: [T]he conservative majority is reverting to judicial practices before the New Deal, but not in the way many commentators expected.  The justices are not restoring ancient doctrinal categories or dramatically cutting back on civil liberties.  Rather, as was the case in 1915ish, the big winner is business.  When business…

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Kennedy’s Inflated Jurisprudence and Us

The demise of Intrade.com has deprived degenerates who will gamble on anything—and other degenerates who link to them—of the opportunity to wager on the outcome of Hollingsworth v. Perry, the case testing the constitutionality of California’s Proposition Eight, which banned same-sex marriage.  But had it remained in operation, the odds likely would have run about even, with all eyes fixed on the great unknown: Justice Kennedy.  Both facts—the even odds and the unknown on whom they rest—are problems.  The even odds imply unpredictability in the law, and the unpredictability of Justice Kennedy’s jurisprudence, in turn, suggests a false complexity of constitutional jurisprudence that places it beyond the grasp of mortals and in the hands of a mysterious priesthood whose decisions require divination.  However one wants the case resolved, it should not be decided like this.

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Hadley Arkes on Right Reason and Constitutional Law

gavel

In this podcast, I discuss with Hadley Arkes the fundamental touchstones of our written Constitution that he contends are discovered through reason and logic in a process that goes beyond the text. In his most recent book, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law, Arkes argues "the task of judgment,  in our constitutional law, persistently moves us away from the text, or from a gross description of the act, and it moves us to the commonsense understanding of the principles that guide these judgments: the principles that help us in making those distinctions between the things…

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ConLaw Can Wait

The interesting Paulsen-Levinson-Lund three-way reminds me of a recommendation made by Vanderbilt
law professor Suzanna Sherry a few years ago (at an AEI seminar—I don’t know if Suzanna has written it up some place): whatever you may want to teach in ConLaw, you certainly don’t want to teach it in the first year of law school. It tends to bring out the worst in students. They read Supreme Court opinions and quickly “conclude” that no sensible person can be a legal formalist and/or textualist. This supposed insight then often prompts the conviction, usually expressed with an air of self-conscious sophistication, that law is nothing but politics. 

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