Prof. Bainbridge flags this disturbing Wall Street Journal piece:
The Securities and Exchange Commission is increasingly steering cases to hearings in front of the agency’s appointed administrative judges, who found in its favor in every verdict for the 12 months through September, rather than taking them to federal court.
Previously, the agency had tended to use the ALJs (administrative law judges) for relatively cut-and-dried enforcement actions, while taking more complex or cutting-edge disputes to federal court. Now, following the Dodd-Frank expansion of its powers, it prefers ALJs even for many complex and demanding cases arising from charges such as insider trading. Defendants enjoy a range of protections in federal court that are not provided in administrative litigation, including juries as well as the presence of federal judges who are independent of agency control, held to a more demanding ethical code, and drawn generally from higher and more sophisticated circles within the legal profession. Read the entire Bainbridge commentary, with followups linking Henry Manne (adjudicatory actions are ways to avoid the more demanding process of rulemaking) and Keith Bishop (current system open to constitutional challenge?).
Assemblyman Bob Wieckowski (D-Fremont), the sponsor of a bill in the California legislature, thinks jury service would help advance the assimilation of immigrants by exposing them to an important civic process. Ben Boychuk, at City Journal, doesn’t agree, quoting political scientist Edward Erler: “The idea that legal immigrants can learn to become citizens through jury service is a dangerous experiment on the liberties of American citizens.”
A man who showed up at court in Springfield, Mass. to deal with a traffic ticket mistakenly wound up on a jury. The jury proceeded to hear the evidence and closing statements and convict the defendant; the judge declared a mistrial after it emerged that the man, who spoke limited English, had gotten on to the panel by accident. [MassLive]
The blogosphere has been kicking around that question this week, and I add my own views at Cato at Liberty (& Alkon).
Defenders of the government’s aggressive prosecutions under the Foreign Corrupt Practices Act are finding more and more to be defensive about. The latest in the string of setbacks for the Department of Justice came Monday, when a jury acquitted two defendants in the Justice Department’s 2009 Gabon “sting” operation and the case against three others ended in a mistrial. Alison Frankel: “So far, the Justice Department has not managed to convict a single Gabon sting defendant who contested its charges.” [WaPo, WSJ blog and related, earlier]
More: “A Guest Post From The Africa Sting Jury Foreman” [FCPA Professor]
New Michigan rules allow juries to ask questions and judges to summarize evidence for their benefit. Michigan Chief Justice (and Overlawyered favorite) Robert Young Jr. “says jurors will no longer be treated like kindergarteners” under the new rules. [ABA Journal; my take back when]
“The tree trunks, exposed banks and other hazards whizzing past represent a cornucopia of potential tort suits under U.S. law, yet somehow the Swiss manage to operate these runs without being sued into oblivion.” Dan Fisher at Forbes has a go at explaining why. More: Bill Childs, TortsProf (many U.S. states relatively protective of winter sports providers).