Mintz’s Post

An ICAS - The Professional Body of CAs article taking a look at a recent Court of Session judgment, which provides some useful clarification and guidance around concluding an administration via a court winding-up and the court’s powers in relation to advance remuneration requests. #insolvency ➡ https://lnkd.in/e4w6KA2S

A Supreme Court decision (and dissent) that clearly draw the lines between principled originalism under our Constitution and advocacy for an all-powerful administrative state unconstrained by law. The 7th Amendment plainly requires a jury trial in all lawsuits. The Securities and Exchange Commission (SEC) sought to charge the defendant civil penalties for fraud and, in doing so, acted as prosecutor and judge (no jury allowed). The Court said: “A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator.” Simple enough, but not for the three "progressive" members of the Court. In a dissent, Justice Sotomayor weaseled her way around the 7th Amendment by claiming "There are good reasons for Congress to set up a scheme like the SEC’s. It may yield important benefits over jury trials in federal court, such as greater efficiency and expertise, transparency and reasoned decision making, as well as uniformity, predictability, and greater political accountability. . ." "Sotomayor complains that the Court’s decision “prescribes artificial constraints on what modern-day adaptable governance must look like.” No, it reiterates constitutional constraints on what modern-day adaptable governance must look like. And “must” is a key word there. This stuff isn’t optional." "[Justice] Gorsuch writes: “The agency is free to pursue all of its charges against Mr. Jarkesy. And it is free to pursue them exactly as it had always done until 2010: In a court, before a judge, and with a jury.” You know, as the Constitution says. Thank goodness we don’t live in a world where Sotomayor’s dissent, with which the other two progressive justices agreed, is the opinion of the Court. Jarkesy makes clear that without originalism, there are practically no limits to government power." https://lnkd.in/gbprF53z

Today's Supreme Court of the U.S.'s ruling will have long lasting ramifications! The limitation on agency power will likely lead to a more stringent review process for regulatory decisions, potentially making it harder for agencies to enact new regulations without clear statutory authority. This could affect the pace and scope of future regulatory actions. #scotus #washingtondc #regulators #regulations #courts #lawyers #creditorsrights

BERSIH refers to a statement by YB Datuk Seri Azalina Othman Said, the Minister in the Prime Minister's Department (Law and Institutional Reform) yesterday that the initiative to separate the powers of the Attorney General and the Public Prosecutor will be implemented in phases over two years after a study in three countries. Based on this development, BERSIH is concerned that this major reform agenda may be delayed until the eve of the next general election, and may not even be completed by the current Unity Government's term. 🔗 Click the link below to read more https://lnkd.in/g-52wxHt

In recent years, the common law on secret commission claims has become more settled, however not all claimants are adapting to these developments. Following the Wood appeal, claimants now face a lower burden to discharge to succeed in their claims, yet as each case turns on its facts, that fact specific analysis is often lacking. Not to mention the standard remains more rigorous for half secret commissions. Craig McAdam and Fred Feistauer explore the specifics of these developments. Read the full article here: https://bit.ly/3MXCNN4

The latest supplement to Wolters Kluwer’s Civil False Claims and Qui Tam Actions, authored by partner Doug Baruch, comes on the heels of an unusually active False Claims Act (FCA) docket in the US Supreme Court. Read on to learn more about the Court's decisions on two FCA topics of interest and a potential new era of constitutional scrutiny of the FCA’s qui tam provisions. https://bit.ly/4aMdRCH

The Court has recently clarified which version of the York-Antwerp Rules is incorporated into the Congenbill 1994 and consequently which set of the Rules applied to the general average adjustment in this case. This issue has been debated for years and the Court decided that it is the York-Antwerp Rules 2016, not the 1994 version. In their article, Alexander Freeman and Richard Cooper consider the Court’s reasoning. More here: https://lnkd.in/eYWk6TgG #ShippingLaw #MarineLaw #MaritimeLaw

The federal administrative adjudicatory process and the use of Administrative Law Judges (“ALJs”) violate the 5th Amendment's Due Process Clause, the 7th Amendment's right to a jury trial, and the separation of powers. Further, the “for cause” restriction on the President’s power to remove ALJs violates Article II’s Appointments Clause and Vesting Clause. Administrative adjudication unconstitutionally allows federal administrative agencies to serve as the judge, jury, and prosecutor. While the Supreme Court should remedy many of these concerns in SEC v. Jarkesy. Congress could have already resolved these constitutional concerns by amending the APA to bar administrative adjudication and the use of ALJs. #AdministrativeLaw #DueProcess #AppointmentsClause #APA

The final ruling on this case could have far reaching implications for the administrative state. If the SC upholds the appeals court’s ruling then large swathes of the current administrative apparatus will be deemed unconstitutional. Watch this one!

Federal Rule 702 is officially amended to clarify that judges, not juries, evaluate the sufficiency of expert evidence. States are now moving to adopt similar amendments. Visit www.dontsaydaubert.com to learn more about the new federal amendment and to get involved in reforming your state’s rules.