Jason Mazzone (University of Illinois College of Law) has posted Waiver of the Seventh Amendment (and Other Constitutional Rights) After SEC v. Jarkesy on SSRN. Here is the abstract:
In a world in which the right to a jury trial is routinely bargained away, SEC v. Jarkesy (2024) is a curious case. In holding that there is a right to a jury trial whenever the SEC brings a securities fraud enforcement action with civil penalties, the Court insisted that juries serve an essential role in our constitutional system. “The SEC’s antifraud provisions replicate common law claims,” Chief Roberts wrote in his majority opinion, “and it is well established that common law claims must be heard by a jury.” That cannot be true. Given the frequency with which the jury right is waived, common law claims (like criminal charges) are routinely not heard by juries. There is no must about it. If, after Jarkesy, the Court’s permissive approach to waiver of trial rights in other contexts simply extends unchanged to civil claims brought by the SEC—or, looking down the road, other federal agencies—there are likely to be very few such claims ever decided by juries. Indeed, there are likely to be few such cases that make it to court at all.
Yet there is some reason to think that with respect to agency actions the Court might be less inclined than it has so far been in other contexts to allow the government to negotiate a waiver of the right to trial. Jarkesy, like Loper Bright Enterprises v. Raimondo, decided the same term, reflects the Court’s broader skepticism of a powerful administrative state and particularly of agencies displacing judicial authority. The Court might, therefore, develop new doctrinal rules—perhaps by drawing upon the doctrine of unconstitutional conditions—which limit the ability of the SEC and other agencies to negotiate waiver of the jury trial right that Jarkesy recognizes, and particularly of waivers that prevent actions that agencies initiate from ever reaching a federal court. In other words, skepticism of agency power might well counteract the Court’s willingness in other contexts to permit negotiated waiver of the right to a jury trial. Jarkesy, then, could be a tipping point.
This essay explores limits the Court might impose on the ability of federal agencies to secure waiver of the right to a jury trial and assesses the implications for agency adjudication, for waiver of trial rights in other contexts, and for waiver of constitutional rights more generally. In so doing, the essay considers Jarkesy’s potential to unsettle or produce a rethinking of longstanding rules that treat certain constitutional rights—including the right to a jury trial—as in the hands of individual rights-holders to exercise or bargain away as they please.
Highly Recommended!
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