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5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

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Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#121

Post by vkou »

remarkEon wrote: post #119
vkou wrote: post #111

Earlier quoted context omitted.

> The gist of the decision is that the SEC’s imposition of civil penalties and disgorgement violated defendants’ seventh amendment right to a jury trial If being tried by a jury is so necessary for justice, how is it that ~95% of people currently imprisoned in this country have never faced a jury trial? The answer is obvious - actually having jury trials for everyone would grind the country to a halt, so for the majo…

I don't know where you got that statistic, but regardless of how true it is, I suspect the reason so many are imprisoned without having a jury trial is that they waived that right[1] and took a plea deal. >In a just world, this new development should mirror how jury trials work for the rest of us - anyone demanding a jury trial to avoid regulatory censure should be subjected to such horrific penalties if they lose, t…

> I don't know where you got that statistic

It's a well-known number. [1]

> but regardless of how true it is, I suspect the reason so many are imprisoned without having a jury trial is that they waived that right[1] and took a plea deal.

And why do they waive that right?

Because if they don't waive that right, they are subjected to the Lovecraftian bureaucratic horror-show[2] you pooh-poohed just a few lines down.

Take the plea deal, and serve two, or go to trial, flip a coin, and serve ten.

> I'm sidestepping the reason for why this might be so common.

You can't side-step it - you have to look at the system as a whole. It's true that most people can't ever afford to hire a competent lawyer, and it's true that going to trial with a public defender is lunacy, and it's also true that being found guilty at a trial is far, far worse than taking the guilty plea. This is by design - it's a check and balance that ensures most people don't exercise that right.

A right that for most of us only exists in theory is no right at all. It is a privilege, available for the privileged - in the sense that a feudal lord was privileged. It's justice, but only for those who can afford it. It's a complete perversion of equality under the law.

So, of course I'm mad as hell that this court ruled that the group of people most-favored by having the option for a jury trial receiving it, while we go on, and shrug our shoulders at the inaccessibility of it for the rest of us.

[1] https://innocenceproject.org/guilty-pleas-on-the-rise-crimin....

[2] Going to trial with a public defender certainly qualifies as one.

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#122

Post by vkou »

xyzzyz wrote: post #113
vkou wrote: post #74

Earlier quoted context omitted.

> Yeah, can you imagine the horror of making the congressmen actually do their job and pass the laws, instead of delegating all their authority to unelected, nameless, and effectively unaccountable bureaucrats 1. Those bureaucrats are appointed by the President, whom you vote for, and by Congress, whom you vote for, and may be fired by the former. If you don't like what the executive branch of the government looks li…

> Those bureaucrats are appointed by the President, whom you vote for, and by Congress, whom you vote for, and may be fired by the former. I wish this was the case, but it is not: only a minuscule fraction of government bureaucrats is politically appointed. The people actually drafting the million pages of administrative regulations are overwhelmingly career bureaucrats, who are effectively unfireable. > 2. In 2022,…

> The people actually drafting the million pages of administrative regulations are overwhelmingly career bureaucrats, who are effectively unfireable.

They report to the appointed heads of these agencies, who both sign off on their work, and have the power to either fire them, or reassign them, when they refuse to draft the regulations they are told to draft.

The reason they don't tend to get fired, is because they tend to do what they are told.

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#123

Post by otterley »

superdug wrote: post #57
snowwrestler wrote: post #46

Earlier quoted context omitted.

It will be very interesting to see what happens if SCOTUS tries to roll back the administrative state, because this is how Congress wants things to work. They passed all those laws to create the agencies, after all. And the expanding administrative state is what has allowed members of Congress to do less and less actual work, and more and more performance art and fundraising. They barely even have to pass budgets any…

Who’s historical court would you like to reference? We’ve not been a country for as long as there have been traditions and laws about finance in particular. We fought for independence from a monarchy and its kingdom, not to be free from governance.

We could have started with our own legal decisions without reference to precedent. After all, that's what early English decisions themselves frequently did. They were based on logic, by reference to statutory text, and by weighing the pros and cons of various alternatives, not precedent.

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#124

Post by otterley »

woodruffw wrote: post #55
snowwrestler wrote: post #46

Earlier quoted context omitted.

It will be very interesting to see what happens if SCOTUS tries to roll back the administrative state, because this is how Congress wants things to work. They passed all those laws to create the agencies, after all. And the expanding administrative state is what has allowed members of Congress to do less and less actual work, and more and more performance art and fundraising. They barely even have to pass budgets any…

The practical answer is that every country needs a body of law to "bootstrap" with, and English common and case law isn't the worst place to start.

No they don't. As I said elsewhere, even early English common law was often not written with reference to precedent. You'll see this if you read early English cases.

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#125

Post by otterley »

ihumanable wrote: post #82
snowwrestler wrote: post #46

Earlier quoted context omitted.

It will be very interesting to see what happens if SCOTUS tries to roll back the administrative state, because this is how Congress wants things to work. They passed all those laws to create the agencies, after all. And the expanding administrative state is what has allowed members of Congress to do less and less actual work, and more and more performance art and fundraising. They barely even have to pass budgets any…

I don't see how this doesn't end with the government basically failing. The modern world is dizzyingly complex, if Congress can't delegate to dedicated agencies how does this all work. Are there 435 people in this nation well versed enough to write detailed regulations on nitty gritty details about Securities on Monday, regulations on Agriculture on Tuesday, rules for calculating acceptable emissions for Coal Fired P…

You're kind of mixing up two different things that can be separately analyzed and performed. One is the writing of regulations, which Congress can (and probably should) delegate to administrative bodies. But the interpretation and enforcement of those regulations can, and often does, get put in front of courts. Administrative law judges specialize in hearing cases involving these regulations.

The question in this case is whether juries are also needed in order to survive Constitutional scrutiny, and this opinion concludes it does. So we don't necessarily have to throw out the baby with the bathwater: administrative agencies can coexist with the need for protections for criminal and civil defendants who are subject to the rules they promulgate.

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#126

Post by Dracophoenix »

otterley wrote: post #123
superdug wrote: post #57

Earlier quoted context omitted.

Who’s historical court would you like to reference? We’ve not been a country for as long as there have been traditions and laws about finance in particular. We fought for independence from a monarchy and its kingdom, not to be free from governance.

We could have started with our own legal decisions without reference to precedent. After all, that's what early English decisions themselves frequently did. They were based on logic, by reference to statutory text, and by weighing the pros and cons of various alternatives, not precedent.

>After all, that's what early English decisions themselves frequently did.

Not really. What's commonly called English Common Law is itself an Anglo-Saxon bastardization of Norman Law. Even American Law borrows directly from Norman Law in the formers now dwindling but still surviving usage of Latin.

>They were based on logic, by reference to statutory text, and by weighing the pros and cons of various alternatives, not precedent.

While I agree with the premise that is how law should be, that's generally not how it was nor is it so simple to accomplish. A quote to one should remember is that "[A]ny Anglo-American lawyer must cope with a sneaking feeling that there is no such thing as first principles, just one damned case after another."

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#127

Post by rayiner »

naravara wrote: post #100
fastball wrote: post #23

Earlier quoted context omitted.

Controversial opinion but I think we should all be reading way more primary sources and way fewer news articles.

Unless you’re a lawyer you should be reading articles by lawyers instead of trying to come up with cockamamie interpretations on your own.

As a lawyer, I disagree. The judicial system depends on the faith of ordinary individuals in it. That means opinions must be written for the public to read, not only other lawyers.

My view is that nothing is so complicated that you can’t explain the gist of it to my mother in law (an intellectually curious woman who nonetheless never finished her college degree). In fact if you’re in front of a jury, that’s exactly what you might have to do.

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#128

Post by peyton »

naravara wrote: post #106
usrn wrote: post #101

Earlier quoted context omitted.

That's like arguing you shouldn't the read source for the software you use because you're not an expert.

It’s more like arguing you shouldn’t self diagnose your symptoms because you’re not a doctor. And also, someone who doesn’t know how to code isn’t going to be able to make sense of the source so that particular type of Dunning-Kruger problem is self correcting with programming in a way it’s not with law (or medicine).

Who’s self-diagnosing? It’s a legal opinion. It’s published to be read by anybody.

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#129

Post by zionic »

vmception wrote: post #94
chrsig wrote: post #68

Earlier quoted context omitted.

> I love this. I hope this trend catches on, I can't wait to gut these bloated agencies and force Congress to get back to work at the risk of a completely paralyzed society if they don't. You seem to be making the bold assumption that both parties are acting in good faith. A completely paralyzed society is actually a victory for one party.

I don't find conservative appellate judges to be doing anything extreme. I don't find this 5th circuit one to have done so, I don't find the Supreme Court to have done so. The thinnest rationale I've seen was that Florida Federal district judge that gutted the CDC order one month before it was going to expire anyway, in that case she spent a comical amount of time defining the word "sanitation" after finding a couple…

>mandate was about to expire

This isn’t relevant since they’d extended it many times. The whole “it’s about to expire!” thing was by design.

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#130

Post by digianarchist »

Animats wrote: post #99

This will probably end up being worse for financial-services people who violate the Securities Act. The SEC by itself can't send someone to jail. If they have to go to court, though, the SEC may as well get the Justice Department to bring criminal charges. The court can send people to jail for up to 20 years for violating the Securities Act of 1939. Until now, the SEC seldom bothered. But if they have to prove their…

Not sure about everyone else but it pisses me off that criminal charges resulting in jail time is rarely pursued. The SEC and Justice Department seem to prefer fines which are not an equivalent deterrent.
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