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The SEC\u27s Fight to Stop District Courts from Declaring Its Hearings Unconstiutional
Full text linkCan the Securities and Exchange Commission (SEC) unilaterally deny a United States citizen the right to challenge the constitutionality of the agency\u27s administrative hearings in district court? The SEC thinks so, but it makes no sense for these constitutional challenges to be brought in the very proceeding that allegedly, and likely, violates the U.S. Constitution. The appellate courts mostly agreed with the SEC, until recently when the Fifth Circuit held that the district courts should hear these claims. Given this circuit split, this issue will soon reach the Supreme Court, making this Article extremely timely. The Securities Exchange Act of 1934 authorized the SEC to regulate securities. More recently, Congress amended that act to give the SEC the ability to bring enforcement cases either in federal court before an Article III judge or in its in-house forum before an SEC Administrative Law Judge (ALJ). After numerous losses in federal court, the SEC moved in-house and did so aggressively. As the SEC used adjudication more frequently, entities on the receiving end of an enforcement action challenged the constitutionality of the inhouse process. They sued in federal district courts around the nation, raising a variety of constitutional claims, including unlawful delegation, violation of equal protection and due process, interference with the right to a jury trial, and unconstitutional appointment and removal of SEC ALJs. In response, the SEC argued that federal courts lacked subject matter jurisdiction to hear the claims, citing the doctrine of implied preclusion. The SEC argued that its decision to bring an in-house adjudication against an entity forecloses the federal district courts from hearing any challenges to the SEC\u27s process, including constitutional challenges. The claims can be heard only on appeal of the agency\u27s decision. In short, plaintiffs must endure the very harm they claim is unconstitutional before the issue can be heard in an Article III court. Not surprisingly, plaintiffs counter that they should not have to endure an unconstitutional proceeding before being able to raise their claim that the process is unconstitutional, especially given that no adequate remedy can be provided. You can\u27t unscramble an egg! Resolution of this issue is important because it addresses a fundamental question: who should resolve challenges regarding an agency\u27s constitutionality, the federal courts or the adjudicating agency? Importantly, the SEC is not the only agency mounting this fight. Other agencies are also using the implied preclusion doctrine to prevent district courts from adjudicating their constitutionality. This Article explains the implied preclusion doctrine and why the agencies are wrong. Federal courts should determine whether the agencies\u27 adjudicatory processes violate the Constitution, not the agencies themselves
Episode 12: Tony Varona (Seattle) on the Path to Becoming a Dean
No full textDean Tony Varona (Seattle) discusses his journey to becoming a Dean in a U.S. law school
Cruel and Unusual: The Constitutional Requirements for Heightened Protections for Defendants with Severe Mental Illness in Capital Cases
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A Hebrew Republic of Taxation? Henry George’s Single Tax, Hebraic Law, and Unearned Income
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Civil RICO Suits Against Harm-Causing Marijuana Operations: Momtazi Family, LLC v. Wagner as a Case Study
Full text linkHemp was legalized as a matter of federal law in the 2018 Farm Bill, but the use of cannabis for recreational and medicinal purposes remains a federal crime. This has not stopped an increasing number of states from legalizing recreational and medicinal cannabis as a matter of state law. Unless and until cannabis is legalized on a federal level, coordinated activity to produce and distribute it for recreational and medicinal use can constitute racketeering activity under the federal Racketeer Influenced and Corrupt Organizations Act ( RICO\u27) and give rise to civil RICO lawsuits by private plaintiffs. This article examines one particular civil RICO lawsuit, Momtazi Family, LLC v. Wagner. In this case, owners of a vineyard claimed business injury from a neighboring cannabis operation. Using Momtazi as a focal point, this note reviews what RICO is, the current case law around civil RICO claims involving cannabis, and how the determination of standing for a civil RICO claim in the Ninth Circuit is developing. It also explores the legal landscape for civil RICO claims brought by South Dakota property owners against nearby marijuana operations, which would be brought in the Eighth Circuit
Non-Criminal Behavior: Why Idaho’s Domestic Violence Laws Are Inaccurate and Inefficient
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Episode 6: Basic Law & Economics for the Law School Classroom with Jeremy Kidd (Drake)
No full textProf. Jeremy Kidd discusses the relevance of the law and economics movement to the law school classroom. Jeremy explains, particularly, how the issues of incentives and competition are important for all law students to master