Tuesday, November 22, 2016

Why You Won’t Get Your Day in [Regular] Court

Jed S. Rakoff, a judge of the United States District Court for the Southern District of New York, includes this among the reasons, at The New York Review of Books.
"But a less-noticed example that actually affects many more average citizens is Congress’s increasing delegation of judicial powers and responsibilities to administrative agencies. Without any obvious support from the Constitution, these agencies, which are branches of the executive, then create their own internal courts, with procedures that bear little resemblance to those found in the judiciary. Furthermore, these administrative courts are run by judges who are selected by, paid by, and subject to review by the administrative agencies themselves. Yet Congress, often at the behest of the president, has given increasing powers to these courts, whose independent status is often doubtful.

"For example, the Dodd-Frank Act of 2010 greatly expanded the powers of the Securities and Exchange Commission’s administrative courts, including their power to impose severe monetary penalties on individuals. The SEC in turn has increasingly brought more of its important such cases in its administrative courts, where, not surprisingly, its rate of success is considerably greater than its success rate in federal courts. Thus, in the years between 2010 and 2015, the SEC won 90 percent of its cases in its administrative courts, compared with 67 percent of its cases in federal court.

"For its part, the Supreme Court has greatly limited its effective review of these administrative courts. In particular, the Court’s 1984 decision in Chevron USA v. Natural Resources Defense Council, which severely limited the scope of judicial review of administrative regulations, has been extended to similarly limit judicial review of the decisions of administrative judges in any case where the administrative agency has itself affirmed the decision of its administrative court, which it almost always does. The overall effect, once again, is to deprive ordinary people of meaningful access to regular courts."