Jarkesy’s Implications for the Administrative State
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.Gregg N. Sofer BiographyFull BiographyGregg counsels businesses and individuals in connection with a range of criminal, civil and regulatory matters, including government investigations, internal investigations, litigation, export control, sanctions, and regulatory compliance. Prior to entering private practice, Gregg served as the United States Attorney for the Western District of Texas—one of the largest and busiest United States Attorney’s Offices in the country—where he supervised more than 300 employees handling a diverse caseload, including matters involving complex white-collar crime, government contract fraud, national security, cyber-crimes, public corruption, money laundering, export violations, trade secrets, tax, large-scale drug and human trafficking, immigration, child exploitation and violent crime.Richard Epstein BiographyRichard A. Epstein is the Laurence A. Tisch Professor of Law, New York University Law School, a senior lecturer at the University of Chicago, and the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution.Professor Epstein has published work on a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporation criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation.Epstein’s most recent book publication is The Dubious Morality of Modern Administrative Law (2020). Other works include The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2014); Design for Liberty: Private Property, Public Administration, and the Rule of Law (2011); The Case against the Employee Free Choice Act (2009); Supreme Neglect: How to Revive the Constitutional Protection for Private Property (2008); How the Progressives Rewrote the Constitution (2006); Overdose (2006); and Free Markets under Siege: Cartels, Politics, and Social Welfare (2005).He received a BA degree in philosophy summa cum laude from Columbia in 1964; a BA degree in law with first-class honors from Oxford University in 1966; and an LLB degree cum laude, from the Yale Law School in 1968. Upon graduation he joined the faculty at the University of Southern California, where he taught until 1972. In 1972, he visited the University of Chicago and became a regular member of the faculty the following year.He has been a senior fellow at the MacLean Center for Clinical Medical Ethics since 1984 and was elected a fellow of the American Academy of Arts and Sciences in 1985. In 2011, Epstein was a recipient of the Bradley Prize for outstanding achievement. In 2005, the College of William & Mary School of Law awarded him the Brigham-Kanner Property Rights Prize.Additional ResourcesThe Justice Insiders, “The Administrative State Is Not Your Friend: A Conversation with Professor Richard Epstein” (Episode 7), June 21, 2022The Justice Insiders, “SEC Plays Chicken with Jarkesy” (Episode 18), October 16, 2023U.S. Supreme Court, Securities and Exchange Commission v. Jarkesy, June 27, 2024Gregg N. Sofer and Joseph S. Diedrich, “Landmark Supreme Court Decisions Restrain Federal Administrative Agency Power,” June 28, 2024© 2024 Husch Blackwell LLP. All rights reserved. This information is intended only to provide general information in summary form on legal and business topics of the day. The contents hereof do not constitute legal advice and should not be relied on as such. Specific legal advice should be sought in particular matters.
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