This Article catalogues the long list of criticisms of the Commission’s administrative proceedings. It also evaluates data describing the outcome of litigated matters and finds that, with the exception of insider trading cases, the Commission has an exceptionally high and statistically indistinguishable record of success in administrative and federal court proceedings alike. The data thus seem not to support the view that the Commission has a generalized home-court advantage in administrative proceedings. Nonetheless, the Commission’s virtually unfettered discretion in forum selection decisions, when it can assign cases to a forum that it controls, raises a plethora of institutional design concerns.
Joseph A. Grundfest,
Fair or Foul?: SEC Administrative Proceedings and Prospects for Reform Through Removal Legislation,
85 Fordham L. Rev. 1143
Available at: https://ir.lawnet.fordham.edu/flr/vol85/iss3/10