Here’s a figure about my new home that’s been getting a lot of attention: 90 percent. Supposedly, “in about 90% of cases, an SEC Administrative Law Judge’s (‘ALJ’) initial decision became final when the Commission [did not] engag[e] in plenary review” of the decision. That statistic has become the basis for the argument that, since 90 percent of the cases become final without full commission review, the SEC doesn’t exercise control over ALJs—in violation of the Constitution.
Before I started this job, I thought that this 90 percent number seemed high—and troubling. The implication is that the commission is asleep at the wheel and allowing ALJs to exercise considerable federal power without real oversight. Now, I’ve only been a commissioner for two months. But it’s already clear to me that this argument has little basis in reality.
‘Enforcement 40’ for 2020
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