Earlier this year, in Jarkesy v. SEC, a divided panel of the U.S. Court of Appeals for the Fifth Circuit held that Securities and Exchange Commission's enforcement proceedings are unconstitutional on three separate grounds. Judge Elrod wrote for the panel, joined by Judge Oldham. Judge Davis dissented. Last month, the SEC filed a petition for en banc review.
The Jarkesy opinion brought cheers from some quarters, dismay from others. Even Jon Stewart had an opinion on it.
Yesterday I participated in a webinar on Jarkesy for the Federalist Society's Regulatory Transparency Project, and I thought it was worth a quick post to summarize my views on the good, bad, and ugly parts of the opinion.
