You have the right to a jury trial

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The Supreme Court’s recent Jarkesy decision affirms that people have the right to a jury trial, even in regulatory agencies’ special in-house courts. My colleague Stone Washington and I applaud Jarkesy in a syndicated op-ed for InsideSources:

A big problem faced by Jarkesy and countless other defendants is that his jury-less legal journey did not begin in a regular court.

More than 55 executive branch agencies, including the SEC, run their own in-house court systems. These are called administrative law courts, or ALCs for short. They are separate from the judicial branch established by Article III of the Constitution. Perhaps unsurprisingly, defendants have fewer due-process rights in administrative law courts than in Article III courts.

In these ALCs, the government wins about 90 percent of the time, compared to about 60 percent in regular courts. The agencies choose the judges and pay their salaries. The agencies set the rules for procedure and evidence.

In some ALCs, prosecutors are afforded special access to evidence that they can block the accused from seeing. Some agencies, including the SEC, refuse to allow jury trials, undermining the Seventh Amendment.

We also lay out the next steps in the larger project of restoring lost civil liberties and the separation of powers. Reforming administrative law courts is an important part of that project:

The Supreme Court left the larger ALC apparatus intact in its Jarkesy decision. The court affirmed only the right to a jury trial, leaving other constitutional questions undecided. Addressing other ALC abuses will have to await future cases (or an act of Congress). The FTC, Justice Department or National Labor Relations Board may face the court next…

The best solution is to remove ALCs from executive agencies and put them in the judicial branch, where they belong. We outline several ways to do this in a recent paper.

Read the whole thing here. Stone takes a deeper look at Jarkesy for the Federalist Society’s Regulatory Transparency Project here. Our paper “Conflict of Justice: Making the case for administrative law court reform” is here.