The Disintegration of Administrative Adjudicatory Enforcement Authority

Authors

Robert L. Glicksman, George Washington University Law SchoolFollow

Abstract

In Securities and Exchange Commission v. Jarkesy, the Supreme Court held that the SEC violated Mr. Jarkesy’s Seventh Amendment right to a jury trial by pursuing its charges that he engaged in securities fraud in an administrative forum rather than in federal court. This Essay reviews and critiques the Jarkesy decision, concluding that it ignores several important issues in boiling the case down to whether statutory securities fraud is sufficiently similar to common law fraud to demand attachment of the jury trial right. This decision also distorts decades’ worth of Supreme Court precedents concerning the Seventh Amendment and Article III, relying heavily on cases that are easily distinguishable and ignoring or minimizing precedents that cut against the Court’s desired approach. The Essay also assesses the likely impact of Jarkesy on administrative enforcement by other agencies, using the Environmental Protection Agency as an example. The Essay concludes that the EPA’s administrative enforcement mechanisms under statutes such as the Clean Air Act and the Clean Water Act are constitutional because, among other things, the regulatory standards that the EPA is authorized to enforce under those statutes have little similarity to the common law of public nuisance.

Recommended Citation

Glicksman, Robert L. (2025) "The Disintegration of Administrative Adjudicatory Enforcement Authority," Widener Commonwealth Law Review: Vol. 34: Iss. 1, Article 3.
Available at: https://cwldc.widener.edu/wclr/vol34/iss1/3